Opinion
4:20-cv-00703-YK-GBC
08-06-2021
KIMBERLY CASSEL, Plaintiff, v. KILOLO KIJAKAZI, [1]Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER
GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned United States Magistrate Judge for decision. Kimberly Cassel (“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 February 6, 2017, Plaintiff filed an application for supplemental security income under Title XVI of the Social Security Act (“Act”). (Tr. 17). In the application, Plaintiff alleged disability due to a degenerative mass on the spinal cord, muscle disease, vertigo, and “migraines-bilateral occipital neuralgia.” (Tr. 86). On February 11, 2019, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 14-31). Plaintiff sought review of the decision, which the Appeals Council denied on March 30, 2020, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner of the Social Security Administration. (Tr. 5-10).
On April 27, 2020, Plaintiff 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 September 17, 2020, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 13, 14). On November 2, 2020, Plaintiff filed a brief in support of the appeal. (Doc. 15 (“Pl. Br.”)). On December 11, 2020, Defendant filed a brief in response. (Doc. 16 (“Def. Br.”)). On November 23, 2020, Plaintiff filed a reply. (Doc. 17 (Reply)).
III. ISSUES
On appeal, Plaintiff argues: (1) the ALJ erred in evaluating the consistency of Plaintiff's allegations with the evidence of record in violation of Social Security Ruling 16-3p; (2) contrary to the ALJ's conclusions, medical records following the post cervical fusion establishes the severity of her conditions; (3) in drawing an adverse inference from Plaintiff's non-compliance with undergoing trigger point injections, the ALJ erred by not inquiring the reasons for the non-compliance; (4) the ALJ erred in over-relying on Plaintiff's activities of daily living (ADLs) and Zumba exercise in support of finding Plaintiff's allegations inconsistent with the record; (5) the ALJ's finding that Plaintiff had the RFC to perform sedentary work with a sit-stand option every thirty minutes conflicts with finding Plaintiff “could sit for 6 hours in an 8-hour day, and finding that she needs a sit-stand option every half-an-hour”; (6) the ALJ failed to address the extent Plaintiff would be off-task as a result of the needed position changes given Plaintiff's neck pain, left arm pain, numbness, and tingling; (7) the vocational expert (“VE”) “failed to identify how she determined [Plaintiff] could perform the jobs of a charge account clerk, a document preparer, and telephone quotation clerk based on the . . . RFC . . . [given that the] VE did not testify that she ever saw the aforementioned jobs being performed with a sit/stand option (every half a-hour), ” and; (8) the ALJ erred in denying Plaintiff's request to admit and address a medical source opinion pursuant to 20 C.F.R. 416.1435. Pl. Br. at 8-14.
It appears Plaintiff's counsel erroneously mentions a name other than Plaintiff's and the Court will assume it was a typographical error. Pl. Br. at 13.
IV. BACKGROUND
Plaintiff is classified by the regulations as a younger individual through the date of the February 2019 ALJ decision. (Tr. 85); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff completed the tenth grade. (Tr. 204).
“As the parties are familiar with the record, we raise here only those facts that are essential to our decision.” Kibe v. Comm'r Soc. Sec., 787 Fed.Appx. 801, 802 (3d Cir. 2019).
A. Rejection of Treating Physician Opinion Pursuant to 20 C.F.R. §§ 404.935, 416.1435
Plaintiff argues the ALJ erred in denying Plaintiff's request to admit and address three of Dr. Warren Watkin's September 2018 medical source opinions pursuant to 20 C.F.R. 416.1435. Pl. Br. at 15-16, (Tr. 272-73 (brief to Appeals Council)). While the argument to submit these medical opinions were presented to the Appeals Council and the text of these medical opinions were not submitted to the Appeals Council and are not included in the administrative transcript of proceedings. Doc. 14, (Tr. 5-10 (Appeals Council denial), Tr. 272-75 (Plaintiff's brief to Appeals Council referencing to the records but not submitting them). In support of the opening brief, Plaintiff submits: (1) a letter to the ALJ dated October 8, 2018, requesting Dr. Watkin's medical opinions to be entered in the record; (2) a physical RFC opinion signed by Dr. Watkin on September 28, 2018; (3) an undated mental impairment opinion signed by Dr. Watkin, and; (4) an RFC opinion pertaining to headaches signed by Dr. Watkin on September 28, 2018. Docs. 15-3, 15-4, 15-5. In the February 2019 decision, the ALJ explained:
The claimant submitted or informed the Administrative Law Judge about additional written evidence less than five business days before the scheduled hearing date. The undersigned Administrative Law Judge declines to admit this evidence because the requirements of 20 CFR 416.1435(b) are not met. As indicated above, the claimant's hearing occurred on October 11, 2018. As such, the claimant was required to either submit all evidence by October 5, 2018, or notify the undersigned
of any outstanding evidence by that date. The claimant failed to notify the undersigned of outstanding medical evidence on or before October 5, 2018. Thereafter, the claimant submitted untimely medical evidence from Dr. Walter Watkin, M.D. and Memorial Eye Institute on October 9, 2018. Therefore, the undersigned declines to admit such evidence, in accordance with 20 CFR 416.1435(b).
(Tr. 17). Sections 404.935 and 416.1435 provide:
(a) When you submit your request for hearing, you should also submit information or evidence as required by [§§ 404.1512, 416.912] or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in [§§ 404.1512, 416.912], no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.
(b) If you have evidence required under [§§ 404.1512, 416.912] but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other accidental cause;
or
(iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing.20 C.F.R. §§ 404.935, 416.1435 (effective January 17, 2017, through date of February 2019 decision). During the October 2018 hearing, the following exchange occurred regarding the late-filed medical opinions:
ALJ: [Are] there any . . . documents that were not exhibited that you had an argument that they should be admitted, or is there anything outstanding that is relevant to the issues being decided today?
ATTY: Nothing is outstanding. There were multiple [medical source statements] and RFCs submitted to Your Honor, and it does not meet the five - day deadline; however, they were filled out on September 28, and so we sent them as soon as . . . our office, received them, but it is not within the five - day rule . . . . . . .
ALJ: [T]here's an activities of daily living form that was submitted [October 8th]. There is a prescription printout that was submitted on the 10th. They're both late. There are . . . a whole bunch of medical records, a mental impairment questionnaire, a physical RFC, headaches RFC. . . . Do you have an active and diligent exception that would support an argument that the evidence, although untimely submitted or informed about, because I didn't see anything that you informed us about this evidence, either prior to the hearing? Is there anything in the file I missed that you informed us about this late evidence?
ATTY: No, Your Honor, we weren't aware if we were getting -- if doctors were willing to fill out the RFCs. She was able to get them filled out on September 28. We just didn't receive them in time for the five-day rule. As soon as they were brought to my attention, they were submitted.
ALJ: Okay. Then I'm excluding them all. I don't think that response meets the active and diligent exception. For one thing . . . the date it was filled out . . . doesn't work with . . . with RFCs or things that are completed that are not part of medical records. That argument works well if there's a recent medical treatment that prevented you from getting the records and getting it into the file, because it's all preventable. You know, you can't get the records. However, with getting statements from doctors or anything like that, you can get those at any time. That's all within your control, and you haven't told me anything that tells me that you actively tried to get those records in a timely fashion, and so therefore, I am excluding those. . . .
(Tr. 37-39). The ALJ is correct to conclude Plaintiff did not submit the medical records and opinions from Dr. Watkin within five-business days of the hearing pursuant to sections 404.935, 416.1435. Plaintiff's attorney fails to indicate what date these three medical opinions were received. Plaintiff's attorney does not indicate the existence of a postmark, and upon review of the attached medical opinions, the Court finds no fax letterhead information or any other indicia of the date when the attorney's office received these three opinions. Doc. 15-3 (Dr. Watkin's September 2018 Physical RFC); Doc. 15-4 (Dr. Watkin's Mental RFC); Doc. 15-5 (Dr. Watkin's Headache RFC). Notwithstanding the attorney's failure to submit the medical opinions by the deadline, the Court finds the ALJ's exclusion of these expert medical opinions would run afoul of the principles of fundamental fairness in a hearing and amounts to an abuse of discretion.
i. Abuse of Discretion with Deadline Sanction of Excluding Treating Physician Opinions
As a matter of first impression, the Court reviews an ALJ's decision to impose evidentiary exclusion sanctions for abuse of discretion. See 20 C.F.R. §§ 404.935(a), 416.1435(a); Smith v. Berryhill, 139 S.Ct. 1765, 1779, 204 L.Ed.2d 62 at n.19 (2019) (review of procedural conclusions for abuse of discretion); Cox v. United Parcel Serv., Inc., 753 Fed.Appx. 103, 104-07 (3d Cir. 2018) (applying the Poulis factors to determine if curt abused discretion in issuing sanctions for violating discovery deadlines (citing Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868-70 (3d Cir. 1984)); Krell v. Saul, 931 F.3d 582, 586 (7th Cir. 2019) (applying abuse of discretion standard for pre-hearing procedural decisions); see also Fofana v. Att'y Gen. United States, No. 20-2561, 2021 WL 1573789, at *1 (3d Cir. Apr. 22, 2021) (finding “[i]n general, [immigration judges] have discretion about whether to admit or exclude evidence”); Loja v. Att'y Gen. of U.S., 398 Fed.Appx. 822, 823-24 (3d Cir. 2010) (finding in immigration law “[t]he decision to exclude evidence for failure to meet a filing deadline is reviewed for abuse of discretion”); Dedji v. Mukasey, 525 F.3d 187, 191-92 (2d Cir. 2008) (citing to United States v. Eleven Vehicles, 200 F.3d 203, 215 (3d Cir. 2000) in immigration law case in support of applying abuse of discretion standard to 8 C.F.R. § 1003.31 ); Raymond Proffitt Found. v. U.S. Army Corps of Engineers, 343 F.3d 199, 206 (3d Cir. 2003) (discussing permissive language in regulations allowing review for abuse of discretion); cf. Kuminka v. Atl. Cty. New Jersey, 551 Fed.Appx. 27, 29-30 (3d Cir. 2014)(abuse of discretion review of application of Rule 35 of the Federal Rules of Civil Procedure providing exclusionary sanction for missing deadline).
The cited immigration cases apply 8 C.F.R. § 1003.31 which addresses the immigration judge's authority to exclude evidence as a means of enforcing submission deadlines. While the wording in section 1003.31 in the immigration administrative context is different from sections 404.935, 416.1435 in the social security regulatory scheme, the Court finds these immigration cases persuasive as they initially drew guidance from Third Circuit caselaw regarding courts' general authority to impose deadlines and exclude evidence for failure to submit evidence within a prescribed timeframe.
“In the course of any hearing . . . the Commissioner may . . . examine witnesses, and receive evidence, ” and evidence “may be received at any hearing before the Commissioner of Social Security even though inadmissible under the rules of evidence applicable to court procedure.” 42 U.S.C. § 405(b)(1). Sections 404.935(a), 416.1435(a) provide that if a claimant does not comply with submitting evidentiary documents no later than five business days before the date of the scheduled hearing, “the administrative law judge may decline to consider or obtain the evidence.” 20 C.F.R. §§ 404.935(a), 416.1435(a) (emphasis added). If a claimant did not “inform the [agency] about or submit the evidence before the deadline” but meets any of the “circumstances described in paragraph (b), ” the administrative law judge “will accept the evidence if he or she has not yet issued a decision.” 20 C.F.R. §§ 404.935, 416.1435. The purpose of the five-day requirement is to promote the efficiency of the hearings process, “by ensuring that ALJs have a more complete evidentiary record when they hold hearings, ” and by “reduc[ing] the number of postponed hearings or supplemental hearings needed based on evidence that was available at least 5 business days before the hearing.” See Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process” 81 FR 90987-01 at *90989-90. While sections 404.935 and 416.1435 provide deadline requirements for submitting documents for consideration to the ALJ, the regulations do not have similar deadlines or notice requirements regarding presenting witnesses to the hearing. Medical expert opinion evidence is distinct from treatment records in that the former is testimonial. See Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1428, 28 L.Ed.2d 842 (1971) (observing “a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination”). There is nothing in the regulations preventing the claimant from bringing in the same medical doctor to testify to the same limitations expressed in the written document version of the opinion. The applicable version of sections 404.950(e) and 416.1450(e), as of the time of the February 2019 decision, states “[w]itnesses may appear at a hearing in person. . . . The administrative law judge may ask the witness any questions material to the issues and will allow the parties or their designated representatives to do so.” 20 C.F.R. §§ 404.950(e), 416.1450(e) (version effective from January 17, 2017, to January 16, 2020). A letter from the Agency dated July 11, 2018, informed that Plaintiff's “presence through the hearing is desired since [Plaintiff's] testimony will be based, in part, on the testimony given by [Plaintiff] and any other witnesses, including a medical advisor if needed.” (Tr. 142). In a letter dated July 16, 2018, the Agency informed Plaintiff of “what happens at the hearing” which included the ALJ will ask Plaintiff and “any other witnesses to take an oath or affirm that the testimony is true, ” Plaintiff “may . . . present and question witnesses, ” and the ALJ will ask “any other witnesses questions that will help [to] make a decision” in the case. (Tr. 126-27). There is no apparent reason to have regulations be applied in a manner that would reject submission of a written medical opinion submitted before the hearing and still allow the medical expert to testify to the same limitations. As a practical matter, it should not be necessary for claimants to bring in medical experts to testify in order to fully avail themselves to the applicable hearing rights and such a requirement would run contrary of the nonadversarial nature of Social Security hearings and duty to develop the evidence. See Barrett v. Berryhill, 906 F.3d 340, 344-45 (5th Cir. 2018), as revised (Oct. 16, 2018). This exclusion of documentary evidence unintentionally favors in-person doctor testimony over a written doctor's opinion and contradicts the stated purpose of promoting the efficiency of the hearings process. See 20 C.F.R. §§ 404.935, 416.1435; Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process” 81 FR 90987-01 at *90989-90. Excluding treating physician opinions submitted after the five-day deadline but before the hearing runs counter to the goal of ensuring “a more complete evidentiary record when [adjudicators] hold hearings.” See 20 C.F.R. §§ 404.935, 416.1435; Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process” 81 FR 90987-01 at *90989-90.
As a point of comparison, Rule 26 of the Federal Rules of Civil Procedure provides for requiring notice of a medical expert expected to testify and Rule 35 of the Federal Rules of Civil Procedure provides for exclusion of medical expert testimony in a trial if the medical opinion is not submitted by the indicated deadline. See Fed.R.Civ.P. 26, 35; Garayoa v. Miami-Dade Cty., No. 16-CIV-20213, 2017 WL 2880094, at *3-4 (S.D. Fla. July 6, 2017) (discussing relationship between Rules 26 and 35).
In reference to the five-day submission rule, Social Security Ruling 17-4p adds “[t]o fulfill his or her affirmative duties under our rules, the representative must forward this information or evidence to us and must assist the claimant in complying with our requests for information or evidence as soon as practicable.” SSR 17-4p. The medical opinions were completed on Friday September 28, 2018. Docs. 15-3, 15-4, 15-5. The representative's submission of these opinions on October 8, 2018, eleven business days after the opinions were completed and two days before the hearing, is practicable. See SSR 17-4p; Paluch v. Sec'y Pennsylvania Dep't Corr., 442 Fed.Appx. 690, 693 (3d Cir. 2011) (finding a 28-day extension of time would have been “practicable” to file a Rule 59 motion to reconsider under federal civil procedural rules). Given these contradictions within the above-cited regulations and the fact that the exclusion of the medical records would contradict the stated purpose of the regulations, it was an abuse of discretion to exclude these medical opinions. See 20 C.F.R. §§ 404.935, 416.1435.
A “practicable” amount of time is often coupled with a time limitation not to exceed a certain number of days following the discovery of the information. See, e.g., Matter of Resyn Corp., 945 F.2d 1279, 1282 (3d Cir. 1991) (“as soon as practicable, and within 60 days”); Resol. Tr. Corp. v. Fid. & Deposit Co. of Maryland, 205 F.3d 615, 627 (3d Cir. 2000) (“‘[a]t the earliest practicable moment, not to exceed 30 days after discovery of the loss'”). Such time limitation is lacking in this instance.
But see Upton v. Comm'r of Soc. Sec., No. CV 20-430, 2021 WL 1662491, at *1 (W.D. Pa. Apr. 28, 2021); Guyer v. Saul, No. 3:18-CV-01931, 2020 WL 497286, at *5-8 (M.D. Pa. Jan. 15, 2020), report and recommendation adopted, No. 3:18CV1931, 2020 WL 504658 (M.D. Pa. Jan. 30, 2020).
ii. Admission of Records Pursuant to Sections 404.935(b)(1) and 416.1435(b)(1)
Sections 404.935(b)(1) and 416.1435(b)(1) allow for the admission of evidence after the deadline if the agency action “misled” the claimant. See 20 C.F.R. §§ 404.935(b)(1), 416.1435(b)(1). The Court finds the applicable version of sections 404.916, 404.950(a), 416.1416, 416.1450(a), and the letters the agency sent to Plaintiff informing of her hearing rights were misleading and allows admitting evidence after the deadline. See 20 C.F.R. §§ 404.950, 416.1450 (version effective from January 17, 2017, to January 16, 2020); 20 C.F.R. §§ 404.935(b)(1) and 416.1435(b)(1). Regarding hearing procedures, sections 404.916 and 416.1416 provide that a “disability hearing will enable [the claimant] to introduce evidence, ” and a claimant or “representative may . . . present additional evidence.” 20 C.F.R. § 404.916(a) & (b)(3), 416.1416(a) & (b)(3). The applicable version of sections 404.950(a) and 416.1450(a) as of the time of the February 2019 decision states “[a]ny party to a hearing has a right to . . . to present evidence and to state his or her position.” 20 C.F.R. §§ 404.950(a), 416.1450(a) (version effective: from January 17, 2017, to January 16, 2020). In a letter dated September 15, 2017, the agency informed Plaintiff that “[a]t your hearing . . . [t]he ALJ will consider . . . the evidence now in your file, and any additional evidence you provide.” (Tr. 109). A letter from the agency dated July 16, 2018, informed Plaintiff of “what happens at the hearing” which included Plaintiff and the representative “may submit documents . . . and give written statements about the facts and law, ” however, cautioned Plaintiff “must provide [the] written statements no later than 5 business days before the date of [the] hearing.” (Tr. 126-27). Together, these instructions are unclear as to what Plaintiff's rights are regarding the submission of evidence at the hearing and what is meant by “documents” that can be submitted the day of the hearing. Based on the contradictions in the regulations creating a reasonable possibility of confusion and being “misled, ” the Court recommends remand pursuant to sections 404.935(b)(1) and 416.1435(b)(1).
iii. Implicit Rejection of Treating Physician Opinions
The ALJ's consideration of the medical opinions during the hearing made them part of the record and required to be addressed in the decision. Further into the hearing, the ALJ considered the previously excluded records. During the hearing, the ALJ presented the VE with a hypothetical question based on Dr. Watkin's September 2018 physical RFC opinion, stating:
[ALJ to VE]: I'm trying to follow, to some extent, the limitations from Walter Watkin. Some of it is very difficult to read, to be truthful. Would need to elevate her legs 7.5 inches when sitting. Could rotate her head to the right occasionally; up occasionally; no limitations on left . . . . I'm not sure I understand what -- how I'm supposed to interpret K on the form. It said circle turn head right is marked occasional. It doesn't say anything about the left at all, so I don't know if that means not no limits with the left. But let's just make it the ones that are clear, which is occasional right turn and can occasionally look -- hold the head in an up position, with the chin up, and frequent in a static position. And as far as down goes, it's rare. Rare is defined, on this particular form, somewhere, I hope. . . . Assuming that rare is defined as up to 5% . . . . With that RFC, would [past] work be available for the Claimant as actually performed or generally performed? . . .
[VE]: [N]o past work.
[ALJ]: . . . And other work, this would be a very limited range of light, given the fact that it allows standing and walking of up to six hours each and sitting up to six hours. Is that correct?
[VE]: Yeah, I think we're actually looking at sedentary [work available].Compare (Tr. 77-78 (hearing transcript)) with Doc. 15-3 (Dr. Watkin's September 2018 Physical RFC). During the VE questioning, the ALJ addressed the limitations in the previously excluded headache RFC from Dr. Watkin stating:
[ALJ to VE]: If one needed to avoid bright lights, noise, not very descriptive as far as what level of noise volume, so I'm going to say no loud or very loud. And as far as bright lights, that could be accommodated with sunglasses, if the employer
would permit it. And it says stress and weather changes. . . . [L]et's say no outdoor work . And --
[ALJ to Claimant (“CLMT”)]: [W]hat kinds of things stress you that trigger . . . migraines? You told me there was no trigger. You wake up with them every day.
CLMT: Yeah, that's pretty much how it is.
ALJ: So, the doctor checked off stress.
CLMT: Maybe because when I was in his office, we were talking about how my anxiety has been so bad with my stress levels, just in general, being not able to do things that I used to be able to do and I cannot do, and I get very angry and upset about it. Maybe that's why he put that there.
[ALJ to VE]: Would -- and at times that the person would have to lay down be off task because they have to lay down up to three hours due to such problems, in this hypothetical, I guess this is #4, would any of those jobs exist?
[VE]: [W]ith those restrictions, no, the individual would not be able to maintain competitive-level employment .Compare (Tr. 79-80 (hearing transcript)) with Doc. 15-5 (Dr. Watkin's Headache RFC). During the VE questioning, the ALJ addressed the limitations in the previously excluded mental RFC from Dr. Watkin stating:
[ALJ to VE]: [If] the Claimant would also have the following functional limitations. Marked difficulty understanding, remembering, or applying information. Marked difficulty with concentrating, persisting, or maintaining pace, and marked difficulty with adapting or managing one's self, with marked meaning -- so replace that marked as described on this form.
[VE]: Which form are you --
ALJ: The mental impairment questionnaire. . . . Marked indicates a person is seriously impaired in their ability to perform an activity independently, appropriately, effectively, or on a sustained basis. Would . . . an individual be able to perform any of the past work that the Claimant's done?
[VE]: . . . No, the individual could not do the past relevant work.
[ALJ]: And would an individual be able to do the other work that you've identified
[VE]: No.
[ALJ]: [I]n any of these examples or any other work that exists in the national economy?
[VE]: No, Your Honor.
[ALJ]: And even if an individual had just one of those marked, would that preclude work?
[VE]: I believe so, Your Honor.Compare (Tr. 80-81 (hearing transcript)) with Doc. 15-4 (Dr. Watkin's Mental RFC).
“In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis.” 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(3)(H)(i); SSR 17-4p. (emphasis added). The ALJ's rejection of the treating physician records in this instance does not demonstrate making “every reasonable effort” to obtain all the medical evidence from the treating physician. See 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(3)(H)(i); SSR 17-4p. “In making any determination with respect to whether an individual is under a disability . . . the Commissioner of Social Security shall consider all evidence available in such individual's case record. . . “ 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(3)(H)(i); SSR 17-4p. (emphasis added). The term “considered” entails review by an individual with substantive responsibilities in connection with the decision-making. Cf. Administrative Conference Recommendation 2013-4, The Administrative Record in Informal Rulemaking, 2013 WL 3603244 at 16, 78 Fed. Reg. 41, 352 (July 10, 2013) (defining “considered” in the context of rulemaking) (citing to Nat'l Ass'n of Chain Drug Stores v. U.S. Dep't of Health & Hum. Servs., 631 F.Supp.2d 23, 26 (D.D.C. 2009)). “To say that material was considered also entails some minimum degree of attention to the contents of a document.” Id. “When considering the intensity of a claimant's symptoms, the agency examines ‘the entire case record,' which includes the objective medical evidence, the claimant's statements, and statements by other medical sources and persons.” Rennaker v. Saul, 820 Fed.Appx. 474, 480 (7th Cir. 2020) (citing Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms in Disability Claims, 82 Fed. Reg. 49462, 49464 (October 25, 2017)).
Giving the remand on other grounds, the Court declines to address any issue of preemption.
The ALJ “considered” the three medical opinions during the hearing and presented hypothetical questions to the vocational expert based upon these medical opinions. See 42 U.S.C. § 423(d)(5)(B); cf. Administrative Conference Recommendation 2013-4, The Administrative Record in Informal Rulemaking, 2013 WL 3603244 at 16, 78 Fed. Reg. 41, 352 (July 10, 2013). Given this consideration in the hearing, these medical opinions became a part of the record. See Rennaker v. Saul, 820 Fed.Appx. 474, 480 (7th Cir. 2020); Security Ruling 16-3p. The regulations require the ALJ to provide an explanation for rejecting these medical opinions in the determination of a claimant's disability. See 42 U.S.C. § 423(d)(5)(B), 20 C.F.R. § 404.1527(b), (c) & (f) 416.927(b), (c) & (f); Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001); Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). In the decision, the ALJ must acknowledge these treating source opinions and provide specific reasons for rejecting these opinions. See 20 C.F.R. § 404.1527(f) 416.927(f) (“The adjudicator generally should explain the weight given to opinions from these sources or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case”); SSR 16-3p & n15 (“Our adjudicators will consider such [medical source] opinions by applying the factors in [20 CFR 404.1527 and 416.927]”); see also Plummer v. Apfel, 186 F.3d 422, 429 (An ALJ “cannot reject evidence for no reason or for the wrong reason”). The Third Circuit explained:
we do expect the ALJ, as the factfinder, to consider and evaluate the medical evidence in the record consistent with his responsibilities under the regulations and case law.... This Court has long been concerned with ALJ opinions that fail properly to consider, discuss and weigh relevant medical evidence.... Where there is conflicting probative evidence in the record, we recognize a particularly acute need for an explanation of the reasoning behind the ALJ's conclusions, and will vacate or remand a case where such an explanation is not provided.Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (internal citation omitted). These three opinions from Dr. Watkin amounts to “conflicting probative evidence in the record, ” as demonstrated by the VE testimony that an individual with limitations expressed in these opinions would be precluded from all work. See (Tr. 79-81 (hearing transcript)); Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001); DeGraff v. Comm'r of Soc. Sec., 850 Fed.Appx. 130, 131-32 (2d Cir. 2021) (finding where an ALJ's erroneous refusal to consider evidence “ordinarily requires remand to the ALJ for consideration of the improperly excluded evidence, at least where the unconsidered evidence is significantly more favorable to the claimant than the evidence considered.”); Scott v. Comm'r, Soc. Sec. Admin., 2019 WL 2574974, at *4-5 (D.N.J. June 24, 2019).
Based on the foregoing, the Court recommends remand for the ALJ to explain the weight given to the three opinions from Dr. Watkin.
B. 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.