Opinion
Civil Action 4:20-CV-2264
02-14-2022
REBECCA GEEDY, Plaintiff v. KIOLO KIJAKAZI, [1] Defendant
BRANN, C.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Plaintiff Rebecca Geedy, an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits under Title II of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §405(g).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil 1 Procedure. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the certified administrative transcript, I find the Commissioner's final decision is not supported by substantial evidence. Accordingly, I recommend that the Commissioner's final decision be VACATED.
II. BACKGROUND & PROCEDURAL HISTORY
On October 30, 2018, Plaintiff protectively filed an application for disability insurance benefits under Title II of the Social Security Act. (Admin. Tr. 12; Doc. 12-2, p. 12). In this application, Plaintiff alleged she became disabled as of July 4, 2017, when she was 33 years old, due to the following conditions: depression, manic depressive disorder, panic attacks, agoraphobia, and severe anxiety. (Admin. Tr. 55-56; Doc. 12-3, p. 2-3). Plaintiff alleges that the combination of these conditions affects her ability to be around other people, it interrupts her concentration, and causes panic attacks. (Admin. Tr. 163; Doc. 12-6, p. 21). In 2015, Plaintiff completed her GED. (Admin. Tr. 148; Doc. 15-6, p. 6). Before the onset of her impairments, Plaintiff worked as a cashier, a customer service representative, an 2 office assistant, and as a newspaper delivery person. (Admin. Tr. 172; Doc. 12-6, p. 30).
“Agoraphobia is fear or anxiety about being in situations or places with no way to escape easily or in which help might not be available if intense anxiety develops.” John Barnhill, Agoraphobia, Merck Manual (Apr. 2020), https://www.merckmanuals.com/home/mental-health-disorders/anxiety-and-stress-related-disorders/agoraphobia (last visited Feb. 8, 2022).
On March 13, 2019, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 68; Doc. 12-4, p. 2). On March 28, 2019, Plaintiff requested an administrative hearing. (Admin. Tr. 77; Doc. 12-4, p. 11).
On December 16, 2019, Plaintiff, assisted by her counsel, appeared, and testified during a hearing before Administrative Law Judge Howard Kauffman (the “ALJ”). (Admin. Tr. 27; Doc. 12-2, p. 28). On January 23, 2020, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 9; Doc. 12-2, pp. 10-12). On February 6, 2020, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 125-26; Doc. 12-4, pp. 59-60).
On October 26, 2020, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1-3; Doc. 12-1, pp. 2-4).
On December 3, 2020, Plaintiff initiated this action by filing a Complaint. (Doc. 1). In the Complaint, Plaintiff alleges that the ALJ's decision denying the application is not supported by substantial evidence, and improperly applies the relevant law and regulations. (Id.). As relief, Plaintiff requests that the Court reverse the decision of the Commissioner, or in the alternative vacate and remand the Commissioner's decision; and award her costs for instituting this action. (Id.). 3
On May 17, 2021, the Commissioner filed an Answer. (Doc. 11). In the Answer, the Commissioner maintains that the decision holding that Plaintiff is not entitled to disability insurance benefits was made in accordance with the law and regulations and is supported by substantial evidence. (Id.). Along with her Answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 12).
Plaintiff's Brief (Doc. 13), the Commissioner's Brief (Doc. 16), and Plaintiff's Reply (Doc. 17) have been filed. This matter is now ripe for decision.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing Social Security appeals.
A. Substantial Evidence Review - the Role of This Court
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); 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. 4 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 Plaintiff is disabled, but whether the Commissioner's finding that Plaintiff 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 5 of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).
B. Standards Governing the ALJ's Application of The Five-Step Sequential Evaluation Process
To receive benefits under the Social Security Act by reason of disability, a 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); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a 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 the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a). 6
Throughout this Report, I cite to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on January 23, 2020.
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must sequentially determine: (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 a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a)(1). In making this assessment, the ALJ considers all the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512(a); Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in 7 significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. § 404.1512(b)(3); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
IV. DISCUSSION
A. The ALJ's Decision Denying Plaintiff's Application(s)
In her January 2020 decision, the ALJ found that Plaintiff met the insured status requirement of Title II of the Social Security Act through Date Last Insured. (Admin. Tr. cite.; Doc. cite). Then, Plaintiff's application/applications was/were 8 evaluated at steps one through final step evaluated in ALJ decision. of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between July 4, 2017 (Plaintiff's alleged onset date) and September 30, 2019 (Plaintiff's date last insured) (“the relevant period”). (Admin. Tr. 14; Doc. Doc. 12-2, p. 15). At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairment(s): depression and anxiety. (Id.). At step three, the ALJ found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 15; Doc. Doc. 12-2, p. 16).
Between steps three and four, the ALJ assessed Plaintiff's RFC. The ALJ found that, during the relevant period, Plaintiff retained the RFC to engage in all ranges of work work as defined in 20 C.F.R. § 404.1567 subject to the following additional limitations: “[t]he claimant can perform simple, routine, repetitive tasks, but cannot work at a production rate pace. She can have occasional interaction with the public and supervisors. She can perform low stress work defined as a job with few workplace changes.” (Admin. Tr. 16; Doc. Doc. 12-2, p. 17).
At step four, the ALJ found that, during the relevant period, Plaintiff was capable of performing her past relevant work as a newspaper deliverer (DOT 9 292.457-010). (Admin. Tr. 21; Doc. 12-2, p. 22). At step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work, in addition to her past work, that existed in the national economy. (Admin. Tr. 22-23; Doc. 12-2, pp. 23-24). To support his conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: sexton janitor (DOT 389.667-010), laundry worker II (DOT 361.685-018), and potato chip sorter (DOT 529.687-018). (Admin. Tr. 22-23; Doc. 12-2, pp. 23-24). In her Brief, Plaintiff raises four issues:
(1) That the ALJ's RFC findings were not supported by substantial evidence;
(2) That the ALJ failed to include all established limitations in the RFC findings in his hypothetical to the vocational expert;
(3) That the ALJ erred in finding Plaintiff's statements inconsistent with the evidence, and failed to address Joshua Geedy's statements; and
(4) The ALJ erred in deciding that Plaintiff could return to her past work as a newspaper deliverer.(Doc. 13, p. 10). However, I only need to analyze Plaintiff's first issue, that the RFC was not supported by substantial evidence, to decide this Report and Recommendation.
B. Whether the ALJ Erred in Crafting Plaintiff's RFC
Plaintiff argues that the ALJ failed in three ways in crafting the RFC: (1) that the ALJ did not address all limitations in Dr. Schnepp's opinion, (2) that the ALJ 10 did not address a limitation described in Ms. Menyah's opinion, and (3) that the ALJ erred in his RFC findings when he went against the weight of the medical opinions available in not including an attention and concentration limitation to the RFC. (Doc. 13, pp. 11-13). These issues are interconnected, and they are all based on how the ALJ analyzed the medical opinion evidence in crafting the RFC. Because the ALJ did not support his reasoning as to why Ms. Geedy is limited to simple, routine tasks, after finding that she has moderate difficulties in attention and her ability to complete a workday, I recommend that this case be remanded back to the Commissioner for further proceedings.
I will first address Dr. Schnepp's opinion, and the ALJ's analysis of it. Plaintiff asserts that the ALJ did not include all the limitations that Dr. Schnepp included in his medical opinion. The Commissioner does not directly address this claim, instead arguing that the ALJ properly found Dr. Schnepp's opinion persuasive. (Doc. 16, pp. 16-17).
Dr. Schnepp, a state agency non-examining consultant, found that Plaintiff had moderate limitations in the following areas:
1. The ability to understand and remember detailed instructions,
2. The ability to carry out detailed instructions,
3. The ability to maintain attention and concentration for extended periods,
4. The ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances,
5. The ability to work in coordination with or in proximity to others without being distracted by them,11
6. The ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number of length of rest periods,
7. The ability to interact appropriately with the general public,
8. The ability to accept instructions and respond appropriately to criticism from supervisors,
9. The ability to respond appropriately to changes in the work setting, and
10. The ability to travel in unfamiliar places or use public transportation.(Admin. Tr. 61-63, Doc. 12-3, pp. 8-10). When asked to explain his opinion in narrative form, Dr. Schnepp wrote, inter alia, that Plaintiff could “carry out short and simple instructions . . . [and] make simple decisions.” (Id.). He further wrote that Plaintiff could “maintain an ordinary routine without special supervision.” (Id.). The ALJ found this entire opinion persuasive, summarizing Dr. Schnepp's entire opinion as the “claimant could perform routine unskilled tasks on a sustained basis.” (Admin. Tr. 21, Doc. 12-2, p. 22). The ALJ then cited to the opinion's supportability and consistency with the rest of the medical record. (Id.).
Plaintiff alleges that despite finding Dr. Schnepp's opinion persuasive, the ALJ did not address or consider all of Dr. Schnepp's limitations. Plaintiff claims that the following limitations are not accounted for: (1) maintaining attention and concentration, (2) staying on a schedule, (3) working with others, (4) completing a workday without interruptions, (5) interacting appropriately with the public or supervisors, and (6) responding appropriately to changes in a workplace setting or traveling to unfamiliar places. (Doc. 13, pp. 11-12). However, three of these 12 limitations are clearly addressed by the RFC, so only three limitations are really in contention: (1) ability to maintain attention and concentration, (2) ability to stay on schedule, and (3) completing a workday without interruptions. Plaintiff argues the failure to discuss these limitations is an error. I agree; the ALJ only analyzed some of Dr. Schnepp's limitations.
Plaintiff claims that the ALJ failed to include a “working with others” limitation or an “interacting appropriately with the public or supervisors” limitation, but the ALJ limits Plaintiff to “occasional interactions with the public and supervisors.” Plaintiff alleges that the ALJ failed to include a “responding appropriately to changes in a workplace setting or traveling to unfamiliar places” limitation, but the ALJ accommodates that by including an RFC that limits to “low stress work defined as a job with few workplace changes.”
In adopting Dr. Schnepp's opinion, the ALJ summarizes Dr. Schnepp's opinion by stating that Plaintiff can perform “routine unskilled tasks on a sustained basis.” However, the ALJ does not include all of Dr. Schnepp's limitations because the ability to perform “unskilled tasks” does not “adequately account for moderate restrictions in concentration, persistence, or pace.” Gallo v. Berryhill, No. 18-cv-928, 2019 WL 652346, at * 23 (M.D. Pa. Feb. 15, 2019) (citing Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). As the Fourth Circuit explained, “the ability to perform simple tasks differs from the ability to stay on task [;] [o]nly the 13 latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” McPherson v. Colvin, No. 16-cv-1469, 2016 WL 5404471, at * 20 (E.D. Pa. Sept. 28, 2016) (citing Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015)). The ALJ's reasoning also does not discuss Dr. Schenpp's opinion that Plaintiff has a moderate limitation in her ability to keep a schedule or complete a workday without interruptions. So, even though the ALJ found this entire opinion persuasive, he did not elaborate why he did not include the rest of Dr. Schnepp's opinion. This error is substantial, as this is the only medical opinion that the ALJ found persuasive in full, and the ALJ relies heavily on it in crafting the RFC, which limits Plaintiff to “simple, routine, repetitive tasks.” This failure to articulate is exacerbated by the ALJ's treatment of the other medical opinion evidence.
While the ALJ includes the phrase, on a “sustained basis, ” it is an essentially redundant phrase because ability to perform unskilled work implies that the claimant can perform it on a sustained basis. See 1985 SSR LEXIS 20, at *11 (“The basic mental demands of competitive, remunerative unskilled work include the abilities (on a sustained basis) to understand, carry out. . . .”).
The ALJ had two other medical opinions on the record: Ms. Kovacs' and Ms. Menyah's. Both are Plaintiffs' treating providers. Both providers found that for 10-15% of an 8-hour day, Plaintiff would be precluded from job performance because she could not “complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods.” (Admin Tr. 233-237, 238-242, Doc. 12-7, pp. 31-35, 36-40). Further, both providers thought that Plaintiff would have significant absences and would be less than 50% efficient compared to the average worker in performing her tasks on a sustained basis for a continuous period 14 of six months of more. (Id.). The ALJ found the entirety of Ms. Kovacs' opinion as unpersuasive. (Admin. Tr. 20, Doc. 12-2, p. 21). The ALJ found Ms. Menyah's opinion persuasive in part and rejected the parts of Ms. Menyah's opinion that touched on Plaintiff's ability to maintain a normal work schedule. (Id.).
Ms. Kovacs opined that Plaintiff would be absent from work 5 days or more and would be unable to complete a 8-hour workday 4 days a month. (Admin. Tr. 241, Doc. 12-7, p. 39). Ms. Menyah opined that Plaintiff would be absent 4 days a month and would be unable to complete a normal workday 3 days a month. (Admin Tr. 236, Doc. 12-7, pp. 34-35). Further, as Plaintiff correctly argues, the ALJ did not discuss whether he found Ms. Menyah's finding that Plaintiff would be 50% less efficient compared to an average worker as either persuasive or not.
So, considering that (1) the ALJ does not discuss key portions of Dr. Schnepp's opinion that discuss attention/concentration and her ability to stay on a normal work schedule; and (2) the two other medical opinions demonstrate Plaintiff's moderate limitations on her attention/concentration and her ability to maintain a schedule, the ALJ's decision is not supported by substantial evidence. See Snyder v. Colvin, No. 16-cv-1689, 2017 WL 1078330, at *12-13 (M.D. Pa. Mar. 22, 2017) (“[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.”). To go against all the medical opinion evidence with the facts of this case is not justified. Therefore, I recommend that this case be remanded so the 15 ALJ can discuss the entirety of Dr. Schnepp's opinion, and to consider if that would change Plaintiff's RFC finding.
V. RECOMMENDATION
IT IS RECOMMENDED that Plaintiff's request to vacate the Commissioner's decision and to remand the case back to the Commissioner be Granted as follows:
(1) The final decision of the Commissioner should be VACATED.
(2) 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).
(3) Final judgment should be issued in favor of Rebecca Geedy.
(4) The Clerk of Court should close this case. 16
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local 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. 17