Opinion
CIVIL ACTION NO. 18-2653
09-30-2019
ADAM ISAIAH HUDSON v. ANDREW M. SAUL, Commissioner of Social Security Administration
REPORT AND RECOMMENDATION
Plaintiff, Adam Isaiah Hudson, filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act").
Plaintiff filed a Brief and Statement of Issues in Support of Request for Review ("Pl.'s Br."), defendant filed a Response to Plaintiff's Request for Review ("Def.'s Br."), and plaintiff filed a reply thereto ("Pl.'s Reply"). For the reasons set forth below, the court recommends that plaintiff's Request for Review be GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed an application for SSI on October 27, 2014, alleging disability beginning January 1, 2007. (R. 247-55.) Plaintiff's claim was denied initially and he filed a timely request for a hearing. (R. 67-83.) A hearing was held on February 24, 2017, before Administrative Law Judge ("ALJ") Frederick Timm. (R. 27-66.) Plaintiff, represented by counsel, appeared and testified. Steven Gumerman, a vocational expert ("VE"), also appeared and testified. In a decision dated April 4, 2017, the ALJ found that plaintiff was not disabled under the Act. (R. 11-26.) The ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since September 25, 2014 (20 CFR 416.920(b) and 416.971 et seq.).
2. The claimant has the following severe impairments: obesity, specific learning disorder, paranoid schizophrenia with polysubstance abuse dependence, bipolar affective disorder (BPAD) with polysubstance dependence and post-traumatic stress disorder (PTSD) (20 CFR 416.920(c)).
3. The claimant's impairments, including the substance abuse disorder, meet section 12.03 and 12.09 of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d)).
4. If the claimant stopped the substance use, the remaining limitations would cause more than minimal impact on the claimant's ability to perform basic work activities; therefore, the claimant would continue to have a severe impairment or combination of impairments.
5. If the claimant stopped the substance use, the claimant would not have an impairment or combination of impairments that meets or medically equals any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d)).
6. If the claimant stopped the substance use, the claimant would have the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except that he could only perform unskilled tasks and goal-oriented rather than production-paced tasks, he could have no interaction with the general public (even by telephone) and no more than
occasional interaction with supervisors/co-workers, and he would require a stable workplace (few if any changes of setting, processes and tools).(R. 11-22.)
7. The claimant has no past relevant work (20 CFR 416.965).
8. The claimant was born on October 19, 1995 and was twenty-one years old, which is defined as a younger individual age 18-49, on the date the application was filed.
9. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
10. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
11. If the claimant stopped the substance use, considering the claimant's age, education, work experience, and residual functional capacity, there would be a significant number of jobs in the national economy that the claimant could perform (20 CFR 416.960(c) and 416.966).
12. The substance use disorder is a contributing factor material to the determination of disability because the claimant would not be disabled if he stopped the substance use (20 CFR 416.920(g) and 416.935). Because the substance use disorder is a contributing factor material to the determination of disability, the claimant has not been disabled within the meaning of the Social Security Act at any time from the date the application was filed through the date of this decision.
Plaintiff's application date is October 27, 2014, not September 25, 2014. See R. 247.
Although the ALJ considered Listing 12.09 in his April 4, 2017 decision, the court notes that effective January 17, 2017, this listing was removed from the Listing of Impairments. See 81 Fed. Reg. 66138, 66152 (Sept. 26, 2016). Listing 12.09 (Substance Addiction Disorders) was a reference listing, such that it could not be used alone to meet the definition of disability. Id. It only referred to medical criteria in other listings. Id. See also 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (version effective September 29, 2016 to January 16, 2017).
Plaintiff filed a request for review of the decision of the ALJ that was denied and the ALJ's decision became the final decision of the Commissioner. (R. 1-7, 245-46.) Plaintiff then filed the present claim, seeking judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
The role of this court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner's decision. Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing 42 U.S.C. § 405(g)), cert. denied, 571 U.S. 1204 (2014); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is more than a mere scintilla of evidence, but may be less than a preponderance of the evidence. Jesurum v. Sec'y of U.S. Dep't of Health and Human Serv., 48 F.3d 114, 117 (3d Cir. 1995). This court may not weigh evidence or substitute its conclusions for those of the fact-finder. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). As the Third Circuit has stated, "so long as an agency's fact-finding is supported by substantial evidence, reviewing courts lack power to reverse . . . those findings." Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).
To be eligible for benefits, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). Specifically, the impairments must be such that the claimant "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." 42 U.S.C. § 1382c(a)(3)(B). Under the Act, the claimant has the burden of proving the existence of a disability and must furnish medical evidence indicating the severity of the impairment. 42 U.S.C. § 1382c(a)(3)(H)(i).
The Social Security Administration employs a five-part procedure to determine whether an individual has met this burden. 20 C.F.R. § 416.920. This process requires the Commissioner to consider, in sequence, whether a claimant: (1) is currently employed; (2) has a severe impairment; (3) has an impairment which meets or equals the requirements of a listed impairment; (4) can perform past relevant work; and (5) if not, whether the claimant is able to perform other work, in view of his age, education, and work experience. See id. The claimant bears the burden of establishing steps one through four of the five-step evaluation process, while the burden shifts to the Commissioner at step five to show that the claimant is capable of performing other jobs existing in large numbers in the national economy. Hess v. Comm'r of Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019).
For purposes of this opinion, the court will refer to the version of the relevant regulation in effect at the time of the ALJ's decision on April 4, 2017.
III. BACKGROUND
Plaintiff, who was twenty-one years old at the time of the February 2017 administrative hearing, testified that he does not have, and never has had, a driver's license. (R. 45, 60.) Plaintiff confirmed that his mother died when he was young and that her death adversely affected him. (R. 40.) His mother had sixteen children; he stated that no one took care of him. (R. 41.) When he was in school, plaintiff argued and fought with teachers and other students. (R. 40.) He was not taught how to read, and has difficulty reading and writing. (R. 41.) As a result of his problems with school, plaintiff was placed in an alternative school, George Junior Republic. Id. For a time, plaintiff was housed there in a padded cell in order to restrain and isolate him. Id. After leaving George Junior Republic, plaintiff was placed in the care of his godmother. (R. 45.) With respect to his education, it appears that plaintiff last attended Penrose Elementary School in Philadelphia and dropped out of school at some point. (R. 45-46.)
Plaintiff again was placed in George Junior Republic when he was sixteen years old after he was sentenced for a crime. (R. 45-46.)
At the outset of the hearing, the ALJ noted that plaintiff was wearing a hoodie and a hat. (R. 32.) Plaintiff explained that he always wears a hoodie, because he feels that people are looking at him, which scares him. (R. 33.) Plaintiff confirmed that he participated in treatment to address issues with bipolar disorder and schizophrenia. Id. Plaintiff indicated that he has difficulty going outside alone and that his sister drove him to treatment. Id. He stopped attending treatment in August 2016 when his sister got a job and was no longer able to drive him there. (R. 34.) However, he began treatment again in December of that year, when his brother brought him to treatment. Id. Approximately one year prior to the February 2017 administrative hearing, plaintiff attempted to obtain his GED through classes offered at the treatment center, but he was unable to focus and stopped attending classes after one week. (R. 51.)
When asked to describe how he sleeps at night, plaintiff explained that he normally sleeps in the morning, rather than at night. (R. 34-35.) Plaintiff has experienced nightmares of his father hitting him for as long as he can remember. (R. 35.) Plaintiff further elaborated that he does not sleep at night due to thoughts of abuse. (R. 44.) Plaintiff stated that he does not sleep at night "[b]ecause of the fact that I feel as though I always got hit at nighttime, so by me getting hit at nighttime, I think going to sleep in the morning, that is better." (R. 44.) Plaintiff also indicated that loud noises and arguing can trigger memories of his abuse. Id. He avoids crowds due to a fear of being harmed. Id. Plaintiff does not feel safe outside as a result, but acknowledged that "[w]e got a camera outside our house, so I feel safe." (R. 45.)
Plaintiff explained that he lives with his sister on weekdays and with his brother on weekends. (R. 35.) He spends his days sitting alone in a room, because he likes to be by himself. Id. When asked to elaborate, plaintiff stated, "because I can't hurt myself." (R. 36.) He acknowledged that he does not get along well with others because he "tend[s] to argue" and is destructive when he argues. (R. 36-37.) At times, plaintiff blacks out when angry. (R. 42.) When asked to describe this situation, plaintiff stated, "I don't know. I just black out. And I wake up, there's walls broke and doors off hinges." Id. Plaintiff confirmed statements in the Function Report that was completed in connection with his application for benefits which indicate that he feels bad about himself and sometimes feels like giving up. (R. 38.) When asked whether he goes outside, plaintiff indicated that he does so "very rare[ly]" and that he prefers to stay in his basement room. Id. To the extent that he goes out alone, plaintiff may walk to the store that is on his block. Id. Plaintiff explained that his sister does not ask him to pick up items at the store because he is unable to remember a list of items. (R. 38-39.)
Plaintiff was driven to the administrative hearing by his brother. (R. 53.) Plaintiff represented that he could not have gotten to the administrative hearing by himself because he did not know where it was held. Id. Plaintiff's counsel asked plaintiff how he would feel if he left the building by himself and went outside. Id. Plaintiff indicated that he would be scared and would react violently if someone approached him because he would think the individual was "out to get" him. Id.
Plaintiff acknowledged that he needs reminders to bathe and change his clothes, and that his brother instructed him to change his clothes two days prior to the hearing. (R. 37.) Plaintiff does not perform household chores because he is unable to sufficiently focus to complete the task at hand. Id. He does not know how to cook. (R. 41.) When asked whether he needs reminders to take his medication, plaintiff stated, "[y]es my sister. She got it out for me every day." (R. 53.)
Plaintiff confirmed that he has been arrested twice for selling drugs, but stated that he no longer sold drugs. (R. 39.) When asked to explain how he is able to perform the math computations necessary to sell drugs, plaintiff stated, "the Chinese store is on my block, and my house is about four houses from the Chinese store, so I'll sell - I normally - if I - my sister friend come over, I know he would normally walk me to the store, but I hold stuff." Id. Based on other evidence from the administrative record, the ALJ questioned plaintiff whether he had ever done more than hold drugs. (R. 46.) Plaintiff denied knowing how to chop, and bag up, cocaine. (R. 46-47.) Plaintiff explained that in the context of a group therapy meeting, several members had a discussion about drugs and plaintiff reported to the other members that his participation was limited to holding the drugs. (R. 47.) Plaintiff acknowledged seeing his sister's friend chop cocaine. (R. 47-48.) Plaintiff denied using drugs. (R. 51.) He was asked how long it had been since he "used any street drugs, of any kind, including marijuana." Id. Plaintiff replied, "[t]wo years, a year - two years." Id. Plaintiff's counsel then pointed out a June 2, 2016 urine drug screen "that was clean of anything." (R. 52.)
The ALJ also asked plaintiff about a May 2016 incident noted in the record, during which plaintiff purportedly held his family hostage while under the influence of PCP. (R. 51-52.) Upon further review of the record, and upon clarification from plaintiff, the ALJ realized that a sister of plaintiff was the individual who held the family hostage at knifepoint. Id.
Plaintiff also was asked about a recent employment attempt. Plaintiff explained that his sister's friend was renovating a nearby home and plaintiff was asked to help with the labor. (R. 39-40, 49.) However, plaintiff got into a fight with a co-worker and argued with another. (R. 40.) After the altercation, plaintiff was instructed not to return to the worksite. Id. Plaintiff worked for approximately eight days, but was not paid for the work he performed. (R. 40.) When asked whether he had applied for any other jobs, plaintiff indicated that he does not know how to fill out job applications and he does not have a computer. (R. 51.) Plaintiff does not know how to use a computer. (R. 52.)
Plaintiff stated, "[w]e was - it was, like, putting doors in a house. Like, we was putting - we was - I was lifting doors, and a couple guys kept - like, I kept arguing with a couple guys, and the guy told me - told my sister that I couldn't come back." (R. 40.)
Plaintiff argued with his sister's friend on the telephone over the nonpayment issue. (R. 50.) Plaintiff stated, "I told him, you know, I was going to punch him when I see him." Id.
Plaintiff indicated that he does not have any friends. (R. 42.) He had a friend, the son of his sister's best friend, but he was killed. Id. When asked whether he gets along with his sister, plaintiff stated, "[n]o, I just - she - I just got the basement. She - we don't talk." Id. Plaintiff's sister has children, but plaintiff argues with them as well. (R. 43.) Plaintiff does not get along with his brother with whom he lives on weekends. Id. When asked how he reacts when criticized, plaintiff stated, "I don't like it. I tend to get mad, and I tend to argue with the person, and I tend to try to fistfight with the person." Id.
Plaintiff was asked by the ALJ whether he had been told that he was exposed to lead poisoning. (R. 48.) Plaintiff explained, "when I was a kid, I had had it, and when I came from placement, I was on some medication that ADH, I forget the medication I was on, ADHD. It was for the ADHD, and the - and it was a - my sister said when I was a kid, I used to - they used to eat the stuff off the wall." Id. At the time of the hearing, plaintiff was still prescribed medication for ADHD. Id.
When asked whether he had received chelation therapy to address lead poisoning, plaintiff indicated that he had not. (R. 48.)
Plaintiff's brother, Eric Joseph Spann, testified that he is plaintiff's oldest brother and that they share the same father. (R. 54.) When asked by plaintiff's counsel to explain the care he provides for plaintiff, Mr. Spann stated, "I have to take my brother everywhere he go[es]. He - it's just a lot on a family. His sister and I, we kind of share responsibilities. He stay[s] with her half the time. He stay[s] with me on the weekends." (R. 55.) Mr. Spann testifed that plaintiff is unable to work, stating as follows:
[T]he reason he can't work, he can't get along with others. If I could rewind the tape a little bit, when Adam was a kid, he got picked on a lot when he went to school, so he used to fight a lot. The other kids used to pick on him about the way he dressed, looked, hair, smell. He wasn't - they just didn't do a good job with him, so he didn't - I believe he didn't get a fair start. He views life - I mean, him and I, we argue. We go through changes. You know, it could be - I asked him to bring some bags in from - we went food shopping. I asked him, bring some bags in the house, and he brought one bag in, and I'm telling him there's more than one bag out there. We get into a brotherly scuffle. You know, he - Adam just want to do what Adam wants to do.(R. 56.) Mr. Spann, who has held his job for twenty years, indicated that plaintiff is not capable of working in any capacity where he is employed. (R. 55, 57.) When asked whether plaintiff interacts with his family, Mr. Spann stated that plaintiff spends most of his time alone in the guest room, leaving the room to eat. (R. 57.) Mr. Spann stated, "[i]t's to the point where we try to avoid [interaction with plaintiff], the situations, because he gets so agitated if you ask him to do something or if you need something done. It's - it just doesn't work." (R. 58.) In response to questioning by the ALJ, Mr. Spann indicated that he can tell when plaintiff is taking his psychotropic medication because when he is medicated, plaintiff's behavior is "a lot more milder." Id. Mr. Spann also noted that plaintiff demonstrates mood swings. (R. 58-59.) When plaintiff is with Mr. Spann, plaintiff does not go out alone. (R. 59.) Mr. Spann also confirmed that plaintiff displays symptoms of paranoia. Id. He stated, "[j]ust an instance today, I pulled over to get a doughnut and a coffee, and he want to say, why would you park here, knowing that people might get me?" Id.
* * *
When it came to my father, when he was - after my father got Adam, he was being raised, and my father used to, you know, like - he was, I guess you could say, manly with him, to get him to do stuff, to try to get him to do stuff, and it just didn't work with Adam, and its - I'm - I mean, I have discovered - and I keep telling everybody, but nobody believes me - that he has a cognitive disorder. Ad Adam just - he just do what he wants to do.
The VE testified that the record demonstrates that plaintiff has no past relevant work. (R. 60.) The ALJ asked the VE to consider a hypothetical individual of plaintiff's age who has functionally a marginal education, no past relevant work, and the capacity for medium exertion. Id. The ALJ further limited the hypothetical individual as follows: limited to unskilled tasks, goal-oriented rather than production-paced tasks, no significant interaction with the general public even by telephone, no more than occasional interaction with supervisors and coworkers, and a stable workplace, involving few, if any, changes of setting, processes, and tools. Id. The VE opined that such hypothetical individual could perform the following jobs: "laundry attendant" which is light, unskilled work (for which there are approximately 115,000 jobs in the national economy); "packer" which is medium, unskilled work (for which there are approximately 350,000 jobs in the national economy); and "sorter" which is light, unskilled work (for which there are approximately 170,000 jobs in the national economy). (R. 61.) The VE confirmed that his testimony was consistent with the Dictionary of Occupational Titles. Id.
In response to questioning by plaintiff's attorney, the VE confirmed that an individual who has marked problems acting appropriately with the public, supervisors, and coworkers would not be able to maintain employment on a regular and sustained basis. (R. 62.) Similarly, the VE opined that an individual who has marked problems dealing with usual work situations and/or work changes would be precluded from maintaining substantial gainful activity. Id. Additionally, the VE confirmed that marked problems in certain functional areas such as maintaining attention and concentration, performing activities within a schedule, or sustaining a normal routine, would preclude employment. See R. 63-64. Furthermore, the VE confirmed that the cumulative effect of several functional limitations could preclude the ability to maintain substantial gainful activity. (R. 64.)
IV. DISCUSSION
The ALJ found that the evidence of record supports a finding that plaintiff has the following severe impairments: obesity, specific learning disorder, paranoid schizophrenia with polysubstance dependence, bipolar affective disorder with polysubstance dependence, and PTSD. (R. 13.) The ALJ found that plaintiff is under a disability, but also determined that plaintiff's substance use is a contributing factor material to the disability determination. (R. 14-18.) Ultimately, the ALJ concluded that if plaintiff stopped the substance use, he retained the residual functional capacity ("RFC") to medium work, with additional limitations related to plaintiff's mental impairments, as set forth in his decision. (R. 18.)
In his request for review, plaintiff argues that the ALJ erred in finding that substance use was a contributing factor material to plaintiff's disability and that the ALJ failed to include all of limitations in the hypothetical questioning of the VE. (Pl.'s Br. at 5-14; Pl.'s Reply at 1-6.) In addition, relying on Lucia v. S.E.C., 138 S. Ct. 2044 (2018), plaintiff contends that the case should be remanded to a different ALJ who has been constitutionally appointed. (Pl.'s Br. at 4-5; Pl.'s Reply at 6-12.) Defendant maintains that substantial evidence supports the decision of the ALJ and that the court should reject plaintiff's Appointments Clause claim because it was not presented to the SSA during the administrative process. (Def.'s Br. at 6-17.)
A. Appointments Clause Challenge
Plaintiff avers that the ALJ did not exercise lawful authority when plaintiff's claim was denied, because the ALJ was an inferior officer who was not properly appointed pursuant to the Appointments Clause of the United States Constitution. (Pl.'s Br. at 4-5; Pl.'s Reply at 6-12.) See U.S. Const., Art. II, § 2, cl. 2 (Congress may vest appointment of "inferior Officers ... in the President alone, in the Courts of Law, or in the Heads of Departments."). In Lucia, the Supreme Court held that the Securities and Exchange Commission's ALJ was appointed in violation of the Appointments Clause because the ALJ was appointed by SEC staff members, not the SEC department head. 138 S. Ct. at 2055. The Court found that Lucia made a timely challenge to the constitutional validity of the ALJ's appointment and remanded for a hearing by either a properly appointed ALJ or the SEC itself. Id. Accordingly, plaintiff presently contends that this case should be remanded to a different ALJ who has been constitutionally appointed. Defendant counters that plaintiff forfeited his Appointments Clause claim because he failed to assert this challenge during the administrative proceedings. (Def.'s Br. at 4-14.) See Turner Bros., Inc. v. Conley, 757 F. App'x 697, 700 (10th Cir. 2018) (not precedential) ("Appointments Clause challenges are nonjurisdictional and may be waived or forfeited.") (citing Freytag v. Comm'r, 501 U.S. 868, 878-79 (1991)).
To date, neither the Court of Appeals for the Third Circuit nor the Supreme Court has determined whether Lucia is applicable to Social Security ALJs. However, the majority of courts that have addressed this issue in the Social Security context in the wake of Lucia have held that the plaintiff has forfeited the Appointments Clause issue for failure to timely raise it at the administrative level. See, e.g., Marchant o/b/o A.A.H. v. Berryhill, 2019 WL 2268982 (E.D. Pa. May 28, 2019); Muhammad v. Berryhill, 2019 WL 2248694 (E.D. Pa. May 23, 2019); A.T. v. Berryhill, 2019 WL 184103, at *7 (D. Kan. Jan. 14, 2019); Byrd v. Berryhill, 2019 WL 95461, at *6 n.10 (E.D. Cal. Jan. 3, 2019); Velasquez v. Berryhill, 2018 WL 6920457, at *1-3 (E.D. La. Dec. 17, 2018); Weatherman v. Berryhill, 2018 WL 6492957, at *3-4 (W.D.N.C. Dec. 10, 2018); Britt v. Berryhill, 2018 WL 6268211, at *2 (W.D.N.C. Nov. 30, 2018); Samuel F. v. Berryhill, 2018 WL 5984187, at *2 (C.D. Cal. Nov. 14, 2018); Davidson v. Comm'r of Soc. Sec., 2018 WL 4680327, at *1-2 (M.D. Tenn. Sept. 28, 2018); Crystal F. v. Comm'r of Soc. Sec., 2018 WL 4689455, at *3 n.1 (E.D. Wash. Sept. 28, 2018); Stearns v. Berryhill, 2018 WL 4380984 (N.D. Iowa Sept. 14, 2018). But see, e.g., Culclasure v. Comm'r of the Soc. Sec. Admin., 375 F. Supp. 3d 559 (E.D. Pa. 2019), appeal filed, No. 19-2386 (3d Cir. June 17, 2019); Cirko v. Berryhill, 2019 WL 1014195 (M.D. Pa. Mar. 4, 2019), appeal filed, No. 19-1772 (3d Cir. Apr. 10, 2019); Bizarre v. Berryhill, 364 F. Supp. 3d 418 (M.D. Pa. 2019), appeal filed, No. 19-1773 (3d Cir. Apr. 17, 2019); Perez v. Berryhill, No. 18-1907 (Doc. 15) (E.D. Pa. Jan. 7, 2019), Report and Recommendation adopted, (Doc. 22) (E.D. Pa. Apr. 23, 2019), appeal filed, No. 19-2428 (3d Cir. June 20, 2019). This court finds the reasoning of Marchant o/b/o A.A.H. v. Berryhill, 2019 WL 2268982 (E.D. Pa. May 28, 2019) (Kelly, J.) and Muhammad v. Berryhill, 2019 WL 2248694 (E.D. Pa. May 23, 2019) (Pappert, J.), to be persuasive on this issue. As such, plaintiff has forfeited his right to challenge the constitutionality of the ALJ's appointment by failing to timely assert this issue during the administrative process. Remand on this issue is not warranted.
B. Materiality of Substance Abuse
Plaintiff also argues that the ALJ properly found that plaintiff's mental impairments meet the requirements of Listings 12.03 and 12.09, but erred in concluding that if plaintiff stopped the substance use, plaintiff would not have met the Listings and retained the RFC to perform a range of medium work. (Pl.'s Br. at 5-13; Pl.'s Reply at 1-5.) Defendant counters that substantial evidence supports the ALJ's decision that plaintiff's substance abuse was material to the finding of disability. (Def.'s Br. at 14-20.)
In the case of an individual who suffers from drug addiction or alcoholism ("DAA"), the Act states that "an individual shall not be considered to be disabled for purposes of this title . . . if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 1382c(a)(3)(J). The regulations explain that DAA is a material or contributing factor if there would be no disability absent the DAA. 20 C.F.R. § 416.935. In making this determination, the disability must be evaluated independently of the DAA. Id. If the claimant's limitations are not disabling after eliminating the DAA-related factors, the DAA is a material factor and the claimant is not eligible for benefits. Id. However, if the limitations remain disabling without the DAA, the claimant is eligible for benefits. Id. Like at other stages of the disability determination, "an ALJ's conclusion that substance abuse is a contributing factor material to a finding of disability must simply be supported by substantial evidence." Crawford v. Astrue, 2009 WL 1033611, at *2 (E.D. Pa. Apr. 15, 2009) (citing Shreve v. Astrue, 2009 WL 130411, at *10 (W.D. Pa. Jan. 20, 2009)).
To assist in the implementation of the regulations, the Commissioner issued Social Security Ruling ("SSR") 13-2p, 2013 WL 621536 (Feb. 20, 2013), which superseded an emergency teletype issued by the Commissioner in August 1996. See EM-96200. Plaintiff argues that the ALJ erred by failing to mention SSR 13-2p and "failing to follow its requirements." (Pl.'s Br. at 7.) The Third Circuit has noted, "we are not aware of any duty which requires ALJs to specifically mention relevant Social Security Rulings when rendering a decision on an individual's claim for Social Security benefits." Holiday v. Barnhart, 76 F. App'x 479, 482 (3d Cir. 2003) (not precedential). Rather, the ALJ's approach should "by and large comport[] with the approach set forth" in the relevant SSR. Id. See also Cano-Martinez v. Colvin, 2015 WL 5781202, at *13 (M.D. Pa. Sept. 30, 2015) ("[W]hat is required is a thorough assessment of a claimant's condition in a manner consistent with these rulings."). Although the ALJ did not err by failing to mention SSR 13-2p, it is unclear whether the ALJ properly followed its guidance.
SSR 13-2p explains the procedure to be used in determining DAA materiality, delineating a series of six steps. See 2013 WL 621536, at *5-8. Of import to the case at bar, at the sixth step, the adjudicator must determine whether the claimant's other impairment(s) would improve to the point of nondisability in the absence of DAA. Id. at *5, *7-9. With respect to mental impairments specifically, SSR 13-2p acknowledges that many people with DAA have co-occurring mental disorders and states that "[w]e do not know of any research data that we can use to predict reliably that any given claimant's co-occurring mental disorder would improve, or the extent to which it would improve, if the claimant were to stop using drugs or alcohol." Id. at *9. As such, to "support a finding that DAA is material, we must have evidence in the case record that establishes that a claimant with a co-occurring mental disorder(s) would not be disabled in the absence of DAA. Unlike cases involving physical impairments, we do not permit adjudicators to rely exclusively on medical expertise and the nature of a claimant's mental disorder." Id. The guidance specifies that the materiality determination must be based on evidence. Id. at *10-11. Additionally, while not required, periods of abstinence from substance abuse are considered to determine "what, if any, medical findings and impairment-related limitations remain[] after the acute effects of drug and alcohol use abate[]." Id. at *12.
Here, the ALJ determined that plaintiff was disabled when considering all impairments including substance use. (R. 14-15.) In this analysis, the ALJ considered the criteria of listings 12.03 (schizophrenia spectrum and other psychotic disorders) and 12.09. The ALJ further found that if plaintiff stopped the substance use, he would continue to have a severe impairment or combination of impairments, but would not have an impairment or combination of impairments that meets or medically equals one of the listed impairments. See R. 15-18. In this analysis, the ALJ considered, inter alia, the Function Report completed by plaintiff; plaintiff's testimony at the administrative hearing; the February 17, 2015 report of Brook Crichlow, Psy.D., a consultative examiner; treatment records from the Wedge Medical Center; treatment records from January 2016 through August 2016 from Sobriety Through Outpatient Inc. ("STOP"); the report of a December 21, 2016 psychiatric evaluation performed at Southwest Nu Stop; and the opinion of Chandra Weerasinge, M.D., plaintiff's treating physician at STOP. (R. 16-17.)
Listing 12.03 addresses schizophrenia spectrum and other psychotic disorders. These disorders are characterized by delusions, hallucinations, disorganized speech, or grossly disorganized or catatonic behavior, causing a clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, inability to initiate and persist in goal-directed activities, social withdrawal, flat or inappropriate affect, poverty of thought and speech, loss of interest or pleasure, disturbances of mood, odd beliefs and mannerisms, and paranoia. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00B2a (version effective March 27, 2017 to August 21, 2017).
The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in A and C are satisfied. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.03 (version effective March 27, 2017 to August 21, 2017). The paragraph A criteria entail medical documentation of one or more of the following: (1) delusions or hallucinations; (2) disorganized thinking (speech); or (3) grossly disorganized behavior or catatonia. Id. The paragraph B criteria are satisfied when a claimant demonstrates extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; or (4) adapt or manage oneself. Id. The paragraph C criteria entail: a mental disorder in this listing category that is "serious and persistent" (defined as a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: (1) medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of the mental disorder; and (2) marginal adjustment (defined as a minimal capacity to adapt to changes in environment or to demands that are not already part of daily life)).
As noted supra, Listing 12.09 was removed before the ALJ's decision was rendered.
The ALJ noted that while medical and educational records dated prior to the application date were reviewed in conjunction with the decision, SSI is only potentially payable from the September 25, 2014 application date. (R. 16.) Accordingly, the ALJ focused on records from that time period. Id.
The ALJ then determined that if plaintiff stopped the substance use, he would have the RFC for medium work, with additional functional mental limitations. (R. 18.) In reaching this conclusion, the ALJ again discussed the evidence of record, including, inter alia, Dr. Weerasinge's opinion. See R. 18-21.
Plaintiff argues that the record does not establish that plaintiff improved to the point of disability in the absence of DAA. In support of his argument, plaintiff points to the February 29, 2016 opinion of Dr. Weerasinge which details extensive functional limitations. See R. 489-94. In this opinion, Dr. Weerasinge diagnosed plaintiff with, inter alia, bipolar affective disorder and ADHD. (R. 489.) Dr. Weerasinge listed plaintiff's symptoms as: anhedonia or pervasive loss of interest in almost all activities; decreased need for sleep; easy distractibility; emotional lability; feelings of guilt or worthlessness; flight of ideas; hallucinations or delusions (auditory hallucinations and paranoia); hyperactivity; impairment in impulse control; mood disturbance; paranoid thinking or inappropriate suspiciousness; psychological or behavioral abnormalities associated with a dysfunction of the brain; psychomotor agitation; and substance dependence. (R. 490-91.) Dr. Weerasinge reasoned that plaintiff's impairments are consistent with these symptoms and the functional limitations listed in the opinion, noting that plaintiff is depressed and has mood swings. (R. 491.) In addition, Dr. Weerasinge repeatedly noted on the form that plaintiff "cannot work." See R. 491, 492, 493, 494.
With respect to the functional limitations, Dr. Weerasinge opined that plaintiff is moderately limited in his ability to understand and remember detailed instructions, and in his ability to carry out very short and simple instructions. (R. 492.) Of significance to plaintiff's argument, Dr. Weerasinge found plaintiff has numerous marked and extreme limitations in functioning. That is, the opinion indicates that plaintiff is markedly limited in his ability to: carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being distracted by them; make simple work-related decisions; complete a normal work-day and work-week, without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; ask simple questions or request assistance; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation; set realistic goals or make plans independently of others; and tolerate normal levels of stress. (R. 492-93.) In addition, Dr. Weerasinge found plaintiff to have extreme limitations in his ability to: accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. (R. 493.) Plaintiff contends that this opinion, in addition to the VE's testimony, support a disability finding.
However, the ALJ ultimately discounted Dr. Weerasinge's opinion. First, in support of his determination that plaintiff would continue to have severe impairments if he stopped the substance use, the ALJ attributed "great weight" to this opinion. (R. 15-17.) The ALJ reasoned that great weight was due this opinion which found "that with active substance abuse the claimant had paranoia and agitation." (R. 17.) The ALJ also relied on this opinion later in his decision, this time attributing it "little weight." See R. 20. That is, in the RFC analysis, the ALJ stated the following with respect to Dr. Weerasinge's opinion:
I also accord little weight to the opinion of the claimant's treating provider at STOP. Although this opinion was expressed by a specialist, the relationship was non-longitudinal as generated at the outset of treatment, and the notes indicate prompt improvement with treatment. Additionally, the claimant's medical provider relied in part, without a stated basis, on uncorroborated lead poisoning. Additionally, the opinion specifies paranoia/agitation as signs and symptoms without discussing drug and alcohol materiality despite the claimant's self-report of marijuana causing panic attacks (Exhibit 8F 3 and 113).Id. (emphasis in original).
The ALJ's reading of Dr. Weerasinge's opinion does not find support in the record. As an initial matter, nothing in Dr. Weerasinge's opinion attributes plaintiff's symptoms or functional limitations to substance use. It appears that Dr. Weerasinge's opinion, which was rendered on February 29, 2016, was given during a period of abstinence. As plaintiff correctly points out, the record contains negative results of alcohol and drug screening dated January 11, 2016, February 12, 2016, February 29, 2016, April 4, 2016, April 19, 2016, and June 1, 2016. See R. 495. However, the ALJ did not mention or discuss this evidence in his decision.
The court notes that plaintiff's counsel raised the evidence a clear urine screen at the administrative hearing. See R. 52.
The court is cognizant of the fact that there is "no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record," Hur v. Barnhart, 94 F. App'x 130, 133 (3d Cir. 2004) (not precedential), and that "[a]n ALJ may accept some of a medical source's opinions while rejecting other opinions from the same source." Comiskey v. Astrue, 2010 WL 308979, at *9 (E.D. Pa. Jan. 27, 2010) (citing Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 202-04 (3d Cir. 2008)). However, an ALJ may not "'pick and choose' among the evidence, selecting only that which supports his ultimate conclusions." Middlemas v. Astrue, 2009 WL 578406, at *9 (W.D. Pa. Mar. 5, 2009) (citing Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2000) (an ALJ may not simply rely on "the pieces of the examination reports that supported [his] determination," while excluding other evidence)).
Additionally, case law guides that an ALJ "may not reject pertinent or probative evidence without explanation." Johnson, 529 F.3d at 204. The ALJ must provide not only an expression of the evidence he considered which supports the result, but also some indication of the evidence which was rejected. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). "In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored." Id. See also Burnett V. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) ("Although the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence."). Moreover, the Third Circuit has stated, "where there is conflicting probative evidence in the record, [there is] a particularly acute need for an explanation of the reasoning behind the ALJ's conclusions, and [the court] will vacate or remand a case where such an explanation is not provided." Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). The results of the drug screens are pertinent evidence which undermine the ALJ's decision to discount Dr. Weerasinge's opinion at least in part on the basis that it reflects plaintiff's symptoms with substance use. The court cannot tell if this significant evidence was not credited or simply ignored.
In addition, the ALJ appears to have reached the conclusion that plaintiff experiences paranoia with active drug use, and this factor was significant to the ALJ's analysis throughout his decision. See R. 17 (finding that if plaintiff stopped substance use, he would not meet the paragraph B for Listing 12.03 because plaintiff would only have moderate limitations in paragraph B criteria "due to reduction of agitation and paranoia as discussed below."); R. 17 (attributing "great weight" Dr. Weerasinge's opinion "that with active substance abuse the claimant had paranoia and agitation"); R. 20 (Dr. Weerasinge's opinion was due "little weight" because "the opinion specifies paranoia/agitation as signs and symptoms without discussing drug and alcohol materiality despite the claimant's self-report of marijuana causing panic attacks (Exhibit 8F 3 and 113).") (emphasis in original). However, the record to which the ALJ points in support of this determination does not indicate that substance use was the source of plaintiff's paranoia.
Exhibit 8F, page 113 is an April 6, 2016 individual therapy note which documents that plaintiff participated in a Weight Management and Fitness Program at STOP. See R. 600 (Exhibit 8F at 113). The note indicates that plaintiff and the facilitator discussed the dangers of marijuana addiction and use. Id. The note also states, "[m]ember reported that he did not like the panic attacks he got from smoking marijuana. Member was very motivated and receptive to the information that they were given during the session." Id. Nothing in the note indicates that plaintiff was using marijuana at that time. In fact, this therapy note is dated two days after one of plaintiff's clean drug screens. See R. 495, 599-600. Additionally, even if plaintiff indicated that marijuana causes him to experience panic attacks, no evidence in the record suggests that plaintiff would not experience paranoia or hallucinations in the absence of substance use. Thus, the evidence of record simply does not support the assumption underlying much of the ALJ's analysis - that paranoia, which as noted supra is relevant to an analysis of schizophrenia under Listing 12.03, does not remain disabling without substance use.
Again, Listing 12.03 addresses schizophrenia spectrum and other psychotic disorders which "are characterized by delusions, hallucinations, disorganized speech, or grossly disorganized or catatonic behavior, causing a clinically significant decline in functioning." 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00B2a (version effective March 27, 2017 to August 21, 2017). Symptoms and signs may include, but are not limited to, inability to initiate and persist in goal-directed activities, social withdrawal, flat or inappropriate affect, poverty of thought and speech, loss of interest or pleasure, disturbances of mood, odd beliefs and mannerisms, and paranoia. Id.
The court is mindful that this court's review is limited to determining whether the Commissioner's decision is "supported by substantial evidence." 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). This court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. Ctr., 806 F.2d at 1190-91. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) ("Courts are not permitted to re-weigh the evidence or impose their own factual determinations."); Burns, 312 F.3d at 118 ("We also have made clear that we are not permitted to weigh the evidence or substitute our own conclusions for that of the fact-finder."). See also Cortes v. Comm'r of Soc. Sec., 255 F. App'x 646, 653 (3d Cir. 2007) (not precedential) ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.") (quoting S.E.C. v. Chenery Corp., 318 U.S. 80, 87 (1943)); Clinkscales o/b/o T.S. v. Colvin, 232 F. Supp. 3d 725, 735-36 (E.D. Pa. 2017) (same). Because the ALJ failed to conduct a proper evaluation of the DAA evidence in the context of the RFC analysis, his analysis is not supported by substantial evidence. Therefore, the court recommends that the case be remanded for further proceedings. If the ALJ again determines that plaintiff retains the RFC to perform a limited range of medium work, he must provide an adequate basis for that determination.
The court also notes that certain of the factors cited by the ALJ in discounting plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms undermine his analysis. For example, the ALJ stated, "[m]ultiple medical providers indicate simple non-compliance rather than inability to access mental health care due to financial/insurance issues as alleged, and only partial medication compliance even during the only sustained period of treatment (Exh. 8F72)." (R. 20.) It is true that plaintiff was discharged from outpatient treatment at Wedge Medical Center due to non-attendance in therapy, see, e.g. 471-87, and that plaintiff acknowledged that he had stopped taking his medication at times, see, e.g., R. 559. However, the record also indicates that on February 1, 2016, plaintiff reported that he was not taking his medication because he "ran out." (R. 507.) A February 4, 2016 treatment note indicates that plaintiff was unable to get one of his prescribed medications because it was not covered by insurance. (R. 512.) In addition, a psychiatric treatment note dated approximately three weeks later reflects that plaintiff "cannot afford the copay to the pharmacy." (R. 519.)
Furthermore, the ALJ relied on evidence concerning plaintiff's alleged stated ability to chop and sell cocaine as support for the determination that plaintiff is capable of performing work tasks. See R. 20, 497. The court notes that at the administrative hearing, plaintiff denied that he knew how to do so, did not recall making such a representation, and thought that the discussion could have occurred during a group therapy session when many members were talking about their various experiences. See R. 46-48. In any event, the therapy note upon which the ALJ relies to make his determination that plaintiff engaged in these activities is undated and incomplete. It is marked as page 2 of 2, however, the first page of this document is missing from the administrative record. See R. 497.
The court points out that on remand, the ALJ will be able to reevaluate the evidence of record.
Upon remand, the Commissioner may well reach the same conclusion; however, in the absence of sufficient indication that the Commissioner considered all of the evidence in the case and applied the correct legal standards, this court cannot satisfy its obligation to determine whether substantial evidence supports the Commissioner's decision. See Terwilliger v. Chater, 945 F. Supp. 836, 844 (E.D. Pa. 1996) (remanding case in the absence of sufficient indication that the Commissioner considered all of the evidence).
C. Hypothetical Questions Posed to the VE
Plaintiff also contends that the ALJ's questions to the VE failed to encompass certain of the limitations that are established by the record. See Pl.'s Br. at 13-14; Pl.'s Reply at 6. It is well-established that the ALJ must include in the hypothetical to the VE all limitations that are supported by the medical record. Plummer, 186 F.3d at 431; Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). However, an ALJ need not "submit to the [VE] every impairment alleged by a claimant." Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014) (emphasis in original) (citing Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005)). An ALJ is only required to submit credibly established limitations. Id. If a limitation "is supported by some medical evidence but controverted by other evidence in the record, it is within the ALJ's discretion whether to submit the limitation to the VE." Id. A VE's testimony in response to a hypothetical "that fairly set forth every credible limitation established by the physical evidence," may be relied upon by the ALJ as substantial evidence. Plummer, 186 F.3d at 431.
Furthermore, the Third Circuit has explained that "objections to the adequacy of hypothetical questions posed to a vocational expert often boil down to attacks on the RFC assessment itself." Rutherford, 399 F.3d at 554 n.8. The court stated:
That is, a claimant can frame a challenge to an ALJ's reliance on vocational expert testimony at step 5 in one of two ways: (1) that the testimony cannot be relied upon because the ALJ failed to convey limitations to the vocational expert that were properly identified in the RFC assessment, or (2) that the testimony cannot be relied upon because the ALJ failed to recognize credibly established limitations during the RFC assessment and so did not convey those limitations to the vocational expert. Challenges of the latter variety (like Rutherford's here) are really best understood as challenges to the RFC assessment itself.
Id.
As discussed supra, the ALJ failed to properly consider the evidence concerning plaintiff's mental impairment. Such failure may impact the ALJ's determinations regarding plaintiff's RFC. When the ALJ reevaluates the evidence, the ALJ will either provide an adequate basis for rejecting such evidence, or reassess plaintiff's RFC and his ability to perform work given the impairments. If the ALJ reaches a different conclusion regarding plaintiff's RFC, the ALJ can submit to the VE new hypothetical questions.
Furthermore, a remand may produce different results on plaintiff's application, making discussion of this claim moot. See Watson v. Astrue, 2009 WL 678717, at *6 (E.D. Pa. Mar. 13, 2009) (declining to address plaintiff's remaining claims "until the basis for the ALJ's ruling is clarified through remand"); Steininger v. Barnhart, 2005 WL 2077375, at *4 (E.D. Pa. Aug. 24, 2005) (concluding that the ALJ's hypothetical was deficient and the vocational expert's answer to it does not constitute substantial evidence for the ALJ's decision and 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").
V. CONCLUSION
After a careful and thorough review of all of the evidence in the record, and for the reasons set forth above, this court finds that the ALJ's findings are not supported by substantial evidence. Accordingly, the court makes the following:
RECOMMENDATION
AND NOW, this 30th day of September, 2019, upon consideration of plaintiff's Brief and Statement of Issues in Support of Request for Review, defendant's response, and plaintiff's reply thereto, it is respectfully recommended that plaintiff's Request for Review be GRANTED.
The parties may file objections to the Report and Recommendation. See Loc. R. Civ. P. 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
BY THE COURT:
/s/ Thomas J. Rueter
THOMAS J. RUETER
United States Magistrate Judge ORDER
AND NOW, this day of , 2019, upon consideration of Plaintiff's Brief and Statement of Issues in Support of Request for Review, defendant's Response to Request for Review of Plaintiff, and plaintiff's reply thereto, and after review of the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter, it is hereby
ORDERED
1. The Report and Recommendation is APPROVED and ADOPTED.
2. Plaintiff's Request for Review is GRANTED, and the decision of the Commissioner of the Social Security Administration is REVERSED to the extent that the matter is REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with United States Magistrate Judge Thomas J. Rueter's Report and Recommendation.
3. Judgment is entered in favor of plaintiff, reversing the decision of the Commissioner for the purpose of this remand only.
BY THE COURT:
/s/_________
JOSEPH F. LEESON, Jr., J.