Opinion
CIVIL ACTION NO. 4:18-CV-37
02-11-2019
THOMAS LEE, JR., Plaintiff, v. NANCY ANN BERRYHILL, Defendant.
(BRANN, J.)
() REPORT AND RECOMMENDATION
This is an action brought under Section 1383(c) of the Social Security Act and 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (hereinafter, "the Commissioner") denying Plaintiff Thomas Lee Jr.'s ("Lee") claims for a period of disability and disability insurance benefits ("DIB") under Titles II and XVI of the Social Security Act. (Doc. 1). The matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommendation pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, and upon detailed consideration of the arguments raised by the parties in their respective briefs, it is respectfully recommended that the Commissioner's decision be VACATED and the matter REMANDED for further consideration. I. BACKGROUND AND PROCEDURAL HISTORY
On December 14, 2014, Lee filed applications for Title II and Title XVI benefits, respectively. (Doc. 9 at 1). In these applications, Lee claimed disability beginning September 10, 2014. (Doc. 9 at 1). The Social Security Administration initially denied Lee's claims on March 11, 2015. (Doc. 8-4 at 8). Lee filed a request for a hearing before an Administrative Law Judge ("ALJ") on March 23, 2015. (Doc. 8-4 at 15). ALJ Daniel Balutis conducted the requested hearing on December 20, 2016. (Doc. 8-2 at 95; 99).
In a written opinion dated January 23, 2017 the ALJ determined that Lee is not disabled and therefore not entitled to the benefits sought. (Doc. 8-2 at 12). Lee appealed the ALJ's decision to the Appeals Council, who, on November 3, 2017 denied Lee's request for review. (Doc. 1-2 at 5). On January 5, 2018, Lee filed the instant action. (Doc. 1). The Commissioner responded on March 27, 2018 and provided the requisite transcripts from the disability proceedings. (Doc. 7); (Doc. 8 and attachments). The parties then filed their respective briefs (Doc. 9); (Doc. 10), with Lee alleging two errors warranted reversal or remand. (Doc. 9 at 4; 10). II. THE ALJ'S DECISION
In a decision dated January 18, 2017, the ALJ determined Lee has not been under a disability, as defined in the Social Security Act, from September 10, 2014, through the date of this decision. (Doc. 8-2 at 16). The ALJ reached this conclusion after proceeding through the five-step sequential analysis required by the Social Security Act. See 20 C.F.R. § 404.1520(a) and 416.920(a). The ALJ determined that Lee met the insured status requirements of the Social Security Act through December 31, 2018. (Doc. 8-2 at 18).
At step one, an ALJ must determine whether the claimant is engaging in substantial gainful activity ("SGA"). 20 C.F.R § 404.1520(a)(4)(i). If a claimant is engaging in SGA, the Regulations deem them not disabled, regardless of age, education, or work experience. 20 C.F.R. § 404.1520(b). SGA is defined as work activity—requiring significant physical or mental activity—resulting in pay or profit. 20 C.F.R. § 404.1572. In making this determination, the ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574. The ALJ determined Lee "has not engaged in [SGA] since September 10, 2014, the alleged onset date." (Doc. 8-2 at 18). Thus, the ALJ's analysis proceeded to step two.
At step two, the ALJ must determine whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ determines that a claimant does not have an "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities, [the ALJ] will find that [the claimant] does not have a severe impairment and [is], therefore, not disabled." 20 C.F.R. § 404.1520(c). If a claimant establishes a severe impairment or combination of impairments, the analysis continues to the third step.
The ALJ found Lee has the following severe impairments:
Fracture and dislocation of the right shoulder status post right shoulder hemiarthroplasty, cellulitis, and osteomyelitis of the right hallux post amputation at the IPJ level of the right great toes, non-insulin dependent diabetes with neuropathy, and morbid obesity. (Doc. 8-2 at 18). The ALJ also identified Lee's non-severe impairments as: gastroesophageal reflux disease, non-infective gastroenteritis and colitis and hypertension.
(Doc. 8-2 at 19).
At step three, the ALJ must determine whether the severe impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (20 C.F.R. §§ 404.1520(d); 404.1525; 404.1526). If the ALJ determines that the claimant's impairments meet these listings, then the claimant is considered disabled. 20 C.F.R. § 404.1520(a)(4)(iii). The ALJ determined that none of Lee's impairments, considered individually or in combination, met or equaled a Listing. (Doc. 8-2 at 19). Specifically, the ALJ considered Listings: 1.02 (major dysfunction of a joint); 1.05 (amputation); 1.07 (fracture of an upper extremity); 9.00 (endocrine disorders); and 11.14 (peripheral neuropathy). (Doc. 8-2 at 19-20).
Between steps three and four, the ALJ determines the claimant's residual functional capacity ("RFC"), crafted upon consideration of the medical evidence provided. The ALJ determined that Lee:
has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except with standing and walking limited to four out of every eight hours and pushing and pulling only on an occasional basis. The claimant can never perform reaching overhead on the right and all other reaching on the right would be frequent. He can do no climbing ladders, ropes or scaffolds or crawling and the remaining postural would be frequent, such as climbing ramps and stairs, balancing, stooping, kneeling and crouching.
(Doc. 8-2 at 21).
Having assessed a claimant's RFC, at step four the ALJ must determine whether the claimant has the RFC to perform the requirements of their past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). A finding that the claimant can still perform past relevant work requires a determination that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Past relevant work is defined as work the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. § 404.1560(b). If the claimant cannot perform past relevant work or has no past relevant work, then the analysis proceeds to the fifth step. The ALJ determined Lee is capable to perform past relevant work as a crane operator. (Doc. 8-2 at 25).
At step five of the sequential analysis process, an ALJ considers the claimant's age, education, and work experience to see if a claimant can make the adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v). These factors are not considered when evaluating a claimant's ability to perform past relevant work. 20 C.F.R. § 404.1560(b)(3). If a claimant has the ability to make an adjustment to other work, they will not be considered disabled. 20 C.F.R. § 404.1520(a)(4)(v).
The ALJ made vocational determinations that Lee was 49 years old on the alleged onset date, defined as a younger individual age 18-49 by the Regulations. 20 C.F.R. § 404.1563. (Doc. 8-2 at 26). The ALJ also noted that Lee "has at least a high school education and is able to communicate in English" as considered in 20 C.F.R. § 404.1564 and 416.964. (Doc. 8-2 at 26). The ALJ determined that upon consideration of these factors, Lee's RFC, and the testimony of a vocational expert, "there are jobs that exist in significant numbers in the national economy that the claimant can perform." (Doc. 8-2 at 26). The ALJ specifically identified occupations of vending machine attendant, courier, and hand garment trimmer. (Doc. 8-2 at 26). In concluding his analysis, the ALJ determined that Lee was not disabled and denied Lee's applications for benefits. (Doc. 8-2 at 27). III. STANDARD OF REVIEW
In order to receive benefits under Title II or Title XVI of the Social Security Act, 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), 1382c(a)(3)(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 significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Additionally, to be eligible to receive benefits under Title II of the Social Security Act, a claimant must be insured for disability insurance benefits. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131.
In evaluating whether a claimant is disabled as defined in the Social Security Act, the Commissioner follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under this process, the Commissioner must determine, in sequence: (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 past relevant work, considering his or her residual functional capacity ("RFC"); and (5) whether the claimant is able to do any other work that exists in significant numbers in the national economy, considering his or her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 20 C.F.R. § 404.1512(a); 20 C.F.R. § 416.912(a). Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform that are consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f) ; 20 C.F.R. § 416.912(f).
In reviewing the Commissioner's final decision denying a claimant's application for benefits, the Court's review is limited to determining whether the findings of the final decision- maker are supported by substantial evidence in the record. See 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. § 405(g) by reference); 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) (internal quotations omitted). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. 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). In an adequately developed factual record, however, 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. Mar. 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 the Court, therefore, is not whether Lee is disabled, but whether the Commissioner's finding that Lee 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."); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) ("The [Commissioner]'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 of review on legal matters is plenary); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012) ("[T]he court has plenary review of all legal issues decided by the Commissioner."). IV. D ISCUSSION
Lee asserts error in the ALJ classification of his "obesity as a severe impairment at step two, made no mention of obesity at all at step 2, and merely offered a boilerplate statement that he considered the effects of the claimant's obesity, subsequently." (Doc. 9 at 11). Lee urges the court to remand this case so that the ALJ may discuss how Lee's obesity affected his step five analysis. (Doc. 9 at 13). Lee also contends that the ALJ's failure to discuss Lee's obesity does not comport with Diaz v. Comm'r of Soc. Sec. or Social Security Ruling ("SSR") 02-01p. (Doc. 9 at 13). Defendant responds that Lee's reliance on Diaz is "mistaken" and instead Rutherford v. Barnhart controls, and therefore the court should decline Lee's call for a remand. (Doc. 10 at 20-21).
"SSR 02-01p addresses how obesity is to be evaluated in disability claims. [SSR 02-01p] states that adjudicators are reminded to consider the effects of obesity when evaluating disability and its combined effects with other impairments." Hoskavitch v. Colvin, No. 3:14-CV-1586, 2015 WL 1913436, *18 (M.D. Pa. April 27, 2015). "The ALJ must meaningfully consider the effect of a claimant's obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step." Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009). If obesity, as a matter of "common sense" or medical diagnosis, would tend to exacerbate an impairment, then the ALJ should consider obesity in combination with the claimant's other impairments. Id. However, the ALJ is not required to consider claimant's obesity pursuant to SSR 00-3p if claimant does not discuss how her obesity would impact the five-step analysis, even when such obesity is obvious from the record. Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005). SSR 00-03p controlled the ALJ's consideration of claimant's obesity in Diaz and Rutherford and "[a]lthough SSR 00-3p was superseded by SSR 02-1p... SSR 02-1p did not materially amend SSR 00-3p." Diaz, 577 F.3d at 503 (internal citations omitted).
In Rutherford, the claimant did not raise obesity as an impairment or limitation before the ALJ. 399 F.3d at 552. However, based on medical records available to the ALJ, which indicated claimant's "height of 5' 2" and approximate weight of 245 pounds," the court assumed the ALJ was on notice that claimant's obesity could be a factor in her ability to work. Id. at 553. However, even though the ALJ did not explicitly consider claimant's obesity at any step of the five-step process, the court declined to remand because "[claimant] has not specified how [obesity] would affect the five-step analysis undertaken by the ALJ." Id. at 552-53. Claimant did generally assert that her obesity made it "more difficult for her to stand, walk, and manipulate her hand and fingers" but the court found this generalized assertion was not enough to require a remand. Id. at 553.
In Cooper v. Comm'r of Soc. Sec., the ALJ found claimant's obesity to be severe at step two of the disability analysis. 268 Fed. Appx. 152, 156 n. 4 (3d Cir. 2008). Ultimately, the ALJ found claimant did not meet any of the listings required for a showing of total disability at step three. Id. at 155. However, the ALJ did not discuss obesity in combination with any of the other ailments at step three. Id. at 156. The Cooper court ultimately remanded to the ALJ to consider the combined effects of claimant's ailments at step three, explicitly relying on the following language from SSR 02-1p: "'a listing is met if there is an impairment that, in combination with obesity, meets the requirements of a listing.'" Id. at 156 (quoting Soc. Sec. Rul. 02-1p)) (emphasis in original). The Cooper court distinguished Rutherford on the basis that the claimant in Cooper specifically requested the ALJ consider "obesity in conjunction with his muscolo skeletal, respiratory, and cardiovascular conditions." Id. at 156.
See also Diaz, 577 F.3d at 505 (remanding for the ALJ to consider whether claimant's obesity "in combination with her asthma, diabetes, arthritis, back pain, and hypertension, impacted her workplace performance").
The instant case is distinguishable from Rutherford because Lee did assert his obesity as a severe impairment which impacted his ability to work at the hearing, and the ALJ found it to be a severe impairment at step two. (Doc. 8-2 at 18-19). Like the claimant in Cooper, Lee does request the ALJ to consider his obesity in combination with his other impairments. (Doc. 9 at 10-13). Although Lee does not use the literal words "combination" or "obesity" in his brief as the claimant in Cooper ostensibly did, his citation to Diaz and SSR 02-1p is at minimum an implicit request for the ALJ to consider his obesity in combination with his other impairments. This citation certainly exceeds the general assertion made by the claimant in Rutherford that obesity may make some tasks more difficult.
See also Diaz, 577 F.3d at 504 (distinguishing Diaz from Rutherford and remanding to the ALJ because "[Claimaint's] obesity was urged, and acknowledged by the ALJ, as a severe impairment that was required to be considered alone and in combination with her other impairments at step three").
Because the ALJ found Lee's obesity to be a severe impairment, the ALJ had a duty under Diaz and Cooper to consider the impact of Lee's obesity at step three. Here, it is apparent that the ALJ did not consider the effect(s) of Lee's obesity at step three, because the ALJ did not once mention SSR 02-01p, a medical opinion which included Lee's obesity, or even the word obesity at step three.
Cf. Martin v. Comm'r of Soc. Sec., 369 Fed. Appx. 411, 414-15 (3d Cir. 2010) (affirming ALJ's decision where ALJ considered the possibility that claimant's obesity met one of the listing requirements, alone or in combination, at step three). --------
"[Claimant]'s morbid obesity would seem to have exacerbated her joint dysfunction as a matter of common sense, if not medical diagnosis." Diaz, 577 F.3d at 504. Here, Lee underwent hemiarthroplasty (i.e. joint replacement surgery) on his right shoulder, which is similar to the joint dysfunction ailment which led the court to remand so the ALJ could consider whether obesity led to a "common sense exacerbation" as in Diaz. The ALJ did not discuss Lee's obesity in combination with his non-insulin dependent diabetes, another ailment which common sense dictates might be exacerbated by obesity and therefore at least required discussion. See Diaz, 577 F.3d at 503-04 (remanding because ALJ failed to consider failed to "determine in the first instance whether, and to what extent, [claimant]'s obesity, in combination with her ...diabetes" impacted the step three listing requirements decision). Therefore, remand is appropriate so that the ALJ may consider the impact of Lee's obesity at step three. See Cooper, 268 Fed. Appx. at 156. V. REMEDY AND RECOMMENDATION
The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the case for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100-01 (1991). However, the Third Circuit has advised that benefits should only be awarded where "the administrative record of the case has been fully developed and when substantial evidence in the record as a whole indicates that the claimant is disabled and entitled to benefits." Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000). See generally Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ("[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation."). Because the Court concludes the ALJ erred in his analysis at step three, the undersigned United States Magistrate Judge respectfully recommends that further development of the record is necessary, and that the decision of the Commissioner be VACATED and that the case be REMANDED to the Commissioner to fully develop the record, conduct a new administrative hearing, and appropriately evaluate the evidence pursuant to sentence four of 42 U.S.C. § 405(g). It is further recommended that the Clerk of Court be directed to CLOSE this case. Dated: February 11, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 11, 2019.
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: February 11, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge