Opinion
CASE NO. 3:18-cv-01361-RDM-GBC
12-10-2019
TODD LEROY FUHRMAN, 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 a report and recommendation. Todd Leroy Fuhrman ("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. STANDARD 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. The process requires an 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)); see also Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). 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. BACKGROUND
A. Procedural History
In June 2015, Plaintiff filed an application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Titles II and XVI of the Act, alleging disability since August 20, 2013. (Tr. 141-52, 158). In May 2017, an ALJ held a hearing where Plaintiff and a Vocational Expert ("VE") testified. (Tr. 27-39). On August 2, 2017, the ALJ issued a decision finding Plaintiff not disabled. (Tr. 12-22). Plaintiff was fifty-four years old at the time of the ALJ's decision. (Tr. 20, 22). In May 2018, the Appeals Council denied Plaintiff's request for review (Tr. 1-6), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 20 C.F.R. §§ 416.1481; 422.210(a). This action followed.
III. ISSUES AND ANALYSIS
On appeal, Plaintiff alleges the following errors: 1) The ALJ's RFC assessment was not supported by substantial evidence as it rejected all medical opinions of record in violation of Doak v. Heckler; and 2) The presiding ALJ was not properly appointed under the Constitution and, therefore, lacked legal authority to hear and decide this case. (Pl. Br. at 6) (Doc. 10).
A. ALJ's Partial-Reliance on State Agency Opinion and RFC Limitations
Plaintiff states the ALJ erred in assigning partial weight to the only medical opinion of record addressing physical limitations from the State Agency consultative examiner. (See Pl. Br. at 7-13). On October 20, 2015, Plaintiff had an internal medicine consultative examination with Spencer Long, M.D. (Tr. 673-86). Dr. Long wrote a report outlining Plaintiff's medical history. (Tr. 673-76). Dr. Long observed Plaintiff developed left ear deafness in 1996. (Id. at 673). Plaintiff began having seizures in 2011 and was diagnosed with epilepsy. Id. In 2011, Plaintiff also developed vertigo, and in 2013, he developed dizziness. Id. As of October 20, 2015, his last seizure was in May 2015. Id. Plaintiff has had two concussions after falls. Id. He stopped using alcohol two months prior in August 2015. Id.
Dr. Long also completed a medical source statement of ability to do work-related activities (physical). (Tr. 677-82). In the medical source statement, Dr. Long indicated Plaintiff could occasionally lift and carry up to twenty pounds, could sit for thirty minutes, could stand or walk for twenty minutes, could sit eight hours a day with varied positions, could stand and walk one hour a day, could occasionally reach overhead, could occasionally push / pull; could occasionally climb stairs, ladders, scaffolds; could occasionally balance, stoop, kneel, crouch, or crawl; could never have exposure to unprotected heights, moving mechanical parts, extreme cold, extreme heat, or vibrations. (Tr. 677-81). Dr. Long further opined Plaintiff could never operate a motor vehicle. (Id. at 681). Dr. Long found Plaintiff could not be exposed to moderate noise for more than one-third of the day and otherwise requires quiet. Id. Dr. Long found due to Plaintiff's physical impairments, he cannot perform activities like shopping and cannot travel without a companion for assistance. Id. at 682. Dr. Long opined Plaintiff could not walk a block at a reasonable pace on rough or uneven surfaces. Id. Dr. Long noted throughout the medical source statement his findings were due to Plaintiff's diagnoses of vertigo, epilepsy, and seizures. (Tr. 677-82). In the decision, the ALJ made the following findings:
The claimant has the following severe impairments: Hepatitis C; drug and alcohol abuse; degenerative disc disease; anxiety; dysthymia; and residuals of traumatic brain injury ...(Tr. 14, 16, 19). The ALJ gave partial weight to the October 20, 2015 opinion of State Agency consultative examiner, Dr. Long. (Tr. 23). The ALJ found, "the record does not document any examination findings to support Dr. Long's extreme restrictions for sitting/standing/walking, manipulation, or operation of foot controls, as he has full strength, no muscle atrophy, and a normal gait." (Tr. 20). These findings are insufficient to reject the limitations assigned by the only medical opinion of record addressing physical limitations, particularly when it was the State Agency's own physician. "An ALJ may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions." Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016). Barnett v. Berryhill, No. 3:18-CV-637, 2018 WL 7550259, at *6 (M.D. Pa. Dec. 10, 2018), report and recommendation adopted, No. 3:18CV637, 2019 WL 1082621 (M.D. Pa. Mar. 7, 2019). See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) ("No physician suggested that the activity [the claimant] could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence.") The Middle District of Pennsylvania recently observed an ALJ must state the reasons for assigning a particular weight to an opinion and cite evidence in the record in order for the Court to conduct a meaningful review:
the claimant has the RFC to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can occasionally climb stairs, balance, stoop, kneel, crouch, and crawl; can never climb ladders; should avoid exposure to excessive noise, excessive bright lights, and hazards; and can never perform commercial driving. In addition, the claimant is limited to simple, routine, repetitive tasks ...
On July 28, 2015, he reported working outside in the heat doing heavy manual labor. He had to stop this work after developing dizziness and weakness, but this evidence suggests that the claimant is able to perform at least light work. Thereafter, in August 2015, the claimant submitted a function report wherein he admitted being able to perform personal care activities, care for his pet, cut the grass with a riding mower, shop for food and other items, count change, watch television, and visit friends regularly. In addition, in October 2015, he told the consultative examiner that he could live with his mother, dress and bathe himself, and do some cooking and cleaning. At the hearing, the claimant testified that he is able to bathe, cook, shop for groceries with someone, and mow the grass with breaks. These activities reveal a significantly greater physical and mental functional capacity than alleged.
The ALJ's explanation is noticeably lacking citations to the medical record ... See Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981) (explaining that for meaningful review to occur, each articulation of weight must be accompanied by "a clear and satisfactory explication of the basis on which it rests") ...
The Court recognizes that an ALJ is not required "to use particular language or adhere to a particular format in conducting his analysis." Jones, 364 F.3d at 505.
However, there must be "sufficient development of the record and explanation of findings to permit meaningful review." Jones, 364 F.3d at 505; see e.g. Rivera v. Comm'r of Soc. Sec., 164 Fed. Appx. 260, 262 (3d Cir. 2006) (explaining how "[t]he only requirement is that, reading the ALJ's decision as a whole, there must be sufficient development of the record and explanation of findings"). For all of these reasons, the Court finds that there is not substantial evidence to support the ALJ's evaluation of the medical opinion evidence.McArthur v. Berryhill, No. 1:17-CV-2076, 2019 WL 1051200, at *8 (M.D. Pa. Jan. 30, 2019), report and recommendation adopted, No. 1:17-CV-2076, 2019 WL 1040673 (M.D. Pa. Mar. 5, 2019). Therefore, the ALJ cannot assign partial weight to the State Agency's own consultative examiner, which was the only medical opinion in the record addressing physical limitations, based on "full strength, no muscle atrophy, and a normal gait." (Tr. 20). Moreover, the ALJ's citation to Plaintiff's daily activities, including stopping an attempt at physical labor after developing dizziness and weakness, mowing the grass with breaks, and shopping and living with his mother, were insufficient to deny Plaintiff's disability claim. (Tr. 19). "The ALJ cannot, as he did here, disregard this medical opinion based solely on his own "amorphous impressions, gleaned from the record and from his evaluation of [the claimant]'s credibility." Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983)." Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000). Without any medical opinion being credited with regards to all of Plaintiff's limitations, the ALJ impermissibly relied on speculation or lay interpretation of medical evidence to reach the conclusion regarding Plaintiff's RFC. See Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (The ALJ may not substitute his own judgment for that of a physician). Therefore, substantial evidence does not support the ALJ's RFC finding when the ALJ rejected the limitations from the State Agency's own consultative examiner, which was the only medical opinion in the record addressing physical limitations, and instead used his own evaluation of the medical evidence to decide Plaintiff's limitations. Accordingly, the ALJ's decision lacks substantial evidence a reasonable mind might accept as adequate to support the conclusion.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. § 416.967.
"A statement of reasons or findings also helps to avoid judicial usurpation of administrative functions, assures more careful administrative consideration, and helps the parties plan their cases for judicial review." See K. Davis, 2 Administrative Law Treatise s 16.05 (1958). "It is significant that both the Administrative Procedure Act governing administrative adjudications generally and regulations applicable to decisions of ALJs in disability matters require that the administrative law judge specify the reasons or basis for the decision." See 5 U.S.C. s 557(c) (1976); 20 C.F.R. s 404.939 (1980). Cotter, 642 F.2d at 705.
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).
Plaintiff has made an Appointments Clause challenge pursuant to the ruling in Lucia v. S.E.C., 138 S. Ct. 2044 (2018), which found the Appointments Clause prescribes the exclusive means of appointing Officers of the United States, and only the President, with the advice and consent of the Senate, can appoint a principal officer, but Congress, instead of relying on that method, may authorize the President alone, a court, or a department head to appoint an inferior officer. U.S.C.A. Const. Art. 2, § 2, cl. 2. Lucia, 135 S. Ct. at 2044. The issue of whether a plaintiff can raise a constitutional claim under the Appointments Clause for the first time at the District Court is currently pending on appeal before the Third Circuit from the Chief Judge's decisions in Bizarre v. Berryhill, 364 F. Supp. 3d 418 (M.D. Pa. 2019) (Conner, C.J.), and Cirko v. Berryhill, No. 1:17-CV-680, 2019 WL 1014195 (M.D. Pa. Mar. 4, 2019) (Conner, C.J.). The Commissioner has also filed an appeal from the Court's decision finding the same conclusion in Walsh v. Saul, No. 3:18CV673, 2019 WL 3816941, at *2 (M.D. Pa. Aug. 14, 2019) (Munley, J.). --------
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
V. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
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: December 10, 2019
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE