Opinion
Civil No. 1:20-CV-194
05-18-2020
HILLARY MARKS, Plaintiff v. ANDREW SAUL, Commissioner of Social Security, Defendant
(Judge Mannion)
( ) REPORT AND RECOMMENDATION
I. Introduction
Hillary Marks suffers from a constellation of physical and psychological impairments. Notwithstanding these impairments, Ms. Marks attempted to represent herself at her disability hearing before the Administrative Law Judge.
The evidence reveals that she was singularly ill-suited for the demands of this task. Thus, Dr. Christopher Gipe, a consulting examining expert who assessed the plaintiff, found that Marks had marked impairments in understanding, remembering and carrying out both simple and complex instructions, as well as marked impairments in terms of interacting appropriately with the public, coworkers, and supervisors and in responding appropriately to usual work situations and changes in a routine work setting due to her psychiatric symptoms. (Tr. 416, 417). Indeed, even simple mental tasks seemed to challenge Marks who was reportedly unable to follow instructions to count by serial threes, despite repeated prompting. (Tr. 413). The intellectual burdens that Marks faced in attempting to present her own case were compounded by the fact that Marks faced both psychological and physical impairments, including back pain and morbid obesity.
Hobbled by her own limitations, and staggering under the burden of presenting this multi-facetted disability claim, Marks participated in a flawed process which led to a flawed result. Marks' inexperience and limitations resulted in at least three forms of direct prejudice to the plaintiff in these proceedings. First, at the hearing itself, the ALJ inappropriately implied that Marks' pregnancy negated her claim of disability. Second, the ALJ's decision prematurely and improperly discounted Marks' mental impairments, finding at Step 2 that these impairments did not meet the de minimis threshold for finding a condition severe, even though an examining expert concluded that Marks suffered from marked impairments in multiple spheres of functioning. Finally, the ALJ failed to give meaningful consideration to Marks' obesity, concluding that Marks, who weighed 326 pounds, could "have frequent stairs, balance, kneel, stoop, crouch and crawl." (Tr. 19).
Finding that Marks' status as an unrepresented litigant in these proceedings contributed to these three forms of prejudice to the plaintiff, for the reasons set forth below, it is recommended that this case be remanded to the Commissioner for further proceedings.
II. Statement of Facts and of the Case
On November 8, 2016, Hillary Marks applied for supplemental security income benefits under the Social Security Act, alleging that she had become totally disabled beginning in October of 2016 due to the combined effects of obesity, back problems, anxiety, depression, and panic disorders. (Tr. 15, 17-18). Marks was 23 years old at the time of the alleged onset of her disability, but had virtually no past work experience due to the physical and emotional challenges that she faced. (Tr. 22).
With respect to Marks' physical condition, it is undisputed that she suffered from at least two severe impairments, obesity and back impairments. (Tr. 17). Marks was five feet, eight inches tall, weighed 326 pounds, and had a body mass index (BMI) which exceeded 30, making her clinically obese. (Tr. 19). But Marks' limitations were not confined to physical impairments. Marks also presented substantial, albeit contested, evidence which suggested that she experienced severe psychological impairments as well, including depression, anxiety, and panic disorders.
The presence and gravity of these emotional impairments was confirmed through a consultative examination conduct by Dr. Christopher Gipe on February 24, 2017. (Tr. 411-18). Dr. Gipe's report of this examination found that Marks experienced marked impairments in 10 different spheres of workplace functioning. (Tr. 416-17). He concluded that Marks suffered from anxiety, depression, and panic disorder; displayed poor insight and judgment; was unable to manage her own personal funds; and demonstrated impaired attention, memory and concentration skills. (Tr. 413). Marks also exhibited an inability due to anxiety to follow even simple instructions. Thus, despite repeated prompts from Dr. Gipe, Marks was unable to understand and complete the process of calculating and reciting serial threes. (Id.) Marks also lacked any sense of orientation, and reportedly had no idea of the current date at the time of this examination. (Id.)
These clinical observations, in turn, were confirmed by the testimony of Mark's grandfather, Roy Marks, at the disability hearing conducted in this case. In his testimony, Mr. Marks explained that he lived with Hillary Marks and stated that she was unable to leave her room, do grocery shopping, or care for her child due to her anxiety and depression. (Tr. 38-42).
Despite this evidence of mental impairments which supported her disability claim and cast doubt upon her ability to present her own case, on June 8, 2018, Marks appeared without the assistance of counsel for her disability hearing before an ALJ. (Tr. 27-48). That hearing began on an ambiguous note and concluded in a troubling manner.
At the outset of the hearing, the ALJ attempted to explain to Marks her right to the assistance of counsel. (Tr. 29). It is entirely unclear if Marks understood precisely what the ALJ was saying, however, since she provided no audible response to this explanation, but merely stated that she wanted to proceed with a hearing. (Tr. 29-30). Therefore, it is uncertain that Marks ever fully understood or appreciated her right to counsel.
As the hearing drew to a close there was a disturbing exchange between Marks and the ALJ, one which suggested that the ALJ believed that Marks' ability to bear children negated her disability claim. As the hearing came to a close, Marks disclosed that she was pregnant and the following colloquy took place:
ALJ: So you're pregnant right now?
Marks: Yes.
ALJ: If you think your disabled and can't work full-time, why would become a full-time parent?
(Tr. 46).
This exchange, which seemed to imply that the ALJ believed that Marks' pregnancy demonstrated that she was not disabled, was completely improper and erroneous. Nonetheless Marks, who was unschooled in the law, felt compelled to try to justify the fact of her pregnancy. (Tr. 46-7).
Following this hearing, on November 23, 2018, the ALJ issued a decision denying Marks' disability claim. (Tr. 15-23). In this decision, the ALJ first concluded that Marks had not engaged in substantial gainful activity since she had applied for these benefits. (Tr. 17). At Step 2 of the sequential analysis that governs Social Security cases, the ALJ only found that Marks' back impairments and obesity were severe impairments. (Tr. 17). The ALJ specifically rejected and discounted Marks' mental and emotional impairments at the threshold stage of this analysis, finding that none of her mental impairments were severe. (Tr.18-19). The ALJ reached this conclusion despite the fact that Dr. Gipe, a consulting examining expert who assessed the plaintiff, found that Marks had marked impairments in understanding, remembering and carrying out both simple and complex instructions, as well as marked impairments in terms of interacting appropriately with the public, coworkers, and supervisors and in responding appropriately to usual work situations and changes in a routine work setting due to her psychiatric symptoms. (Tr. 416, 417).
Having completely discounted these emotional impairments at the outset of this substantive analysis, at Step 3 the ALJ determined that none of Marks' physical limitations met or medically equaled the severity of one of the listed impairments. (Tr. 18-19.)
Moreover, while the ALJ acknowledged that Marks—who was five feet, eight inches tall, weighed 326 pounds, and had a body mass index (BMI) which exceeded 30—was clinically obese (Tr. 19), the residual functional capacity assessment made by the ALJ gave scant consideration to this physical impairment. Instead, the ALJ found that Marks was capable of performing medium work and also could "have frequent stairs, balance, kneel, stoop, crouch and crawl." (Tr. 19).
Having arrived at this residual functional capacity (RFC) assessment, the ALJ found at Step 5 that Marks could perform work in the national economy, and denied her disability claim. (Tr. 20-23.) This appeal followed. (Doc. 1.)
On appeal, Marks argues that the ALJ erred in allowing Marks to proceed uncounseled, and compounded that error through the ALJ's treatment of the psychiatric medical evidence, which was discounted in its entirety at the outset of the ALJ's of this claim. This case is fully briefed and is therefore ripe for resolution. For the reasons set forth below, we agree that these flawed proceedings prejudiced Marks in ways which compel a remand of this case. Therefore we recommend that this case be remanded for further proceedings.
III. Discussion
A. A Remand is Necessary in this Case.
The legal benchmarks which govern waiver of counsel and the duties of an ALJ when dealing with an unrepresented claimant are familiar and well-settled. In this setting:
Though a claimant does not have a constitutional right to counsel at a social security disability hearing, she does have a statutory and regulatory right to counsel at such a hearing. 42 U.S.C. § 406; 20 C.F.R. § 404.1705. The claimant must be given notice of the right to counsel and can waive this right only by a knowing and intelligent waiver. See, e.g., Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir.1982). Moreover, where a claimant is pro se, the ALJ has a duty to help the claimant develop the administrative record and "must scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.2003) (internal quotations omitted).Although an ALJ may deny a pro se claimant benefits, it is appropriate for a reviewing court to remand a case if there is "a showing of clear prejudice or unfairness at the administrative hearing." Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979); see also Livingston v. Califano, 614 F.2d 342, 345 (3d Cir.1980) ("[I]f it is clear that the lack of counsel prejudiced the claimant or that the administrative proceeding was marked by unfairness due to the lack of counsel, this is sufficient for remand, or reversal."). A determination of whether the claimant waived the right to counsel knowingly and intelligently determines who has the burden of demonstrating whether remand is appropriate. As the Court of Appeals for the Seventh Circuit has explained, "[i]f the ALJ does not obtain a valid waiver of counsel, the burden is on the Commissioner to show the ALJ adequately developed the record." Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir.2007).Vivaritas v. Comm'r of Soc. Sec., 264 F. App'x 155, 157-58 (3d Cir. 2008).
In this case, we note as a threshold matter that we have substantial doubts that Marks knowingly and intelligently waived her right to counsel. The ALJ's colloquy with Marks was cursory, ambiguous, and insufficient. (Tr. 29-30). Indeed, the record reveals that Marks never answered the ALJ's inquiry concerning whether she understood that she had a right to counsel, a troubling silence which cast grave doubt over the validity of any subsequent waiver, since we cannot discern from the record if Marks understood the nature of the right she was waiving.
This equivocal and ambiguous waiver is particular disturbing given the evidence possessed by the ALJ, which suggested that Marks exhibited marked impairments in 10 different spheres of workplace functioning; (Tr. 416-17) suffered from anxiety, depression, and panic disorders; displayed poor insight and judgment; was unable to manage her own personal funds; demonstrated impaired attention, memory and concentration skills; lacked any sense of orientation, and reportedly had no idea of the current date at the time of this examination. (Tr. 413). In sum, due to this insufficient waiver, Marks—who was unable to understand and complete the process of calculating and reciting serial threes—was compelled to navigate the complexities of the Social Security administrative process unaided.
We further find that there is "a showing of clear prejudice or unfairness at the administrative hearing" that stemmed from Marks' unrepresented status which justifies a remand of this case. Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979). Indeed, in our view Marks suffered at least three forms of direct prejudice due to this flawed process which led to a deeply flawed outcome.
First, Marks suffered prejudice at the hearing itself when the ALJ inappropriately implied that Marks' pregnancy somehow negated her claim of disability. This type of false equivalence is completely improper and has been flatly rejected by this court, which has held that: "the mere fact that a claimant is able to become pregnant and bear children does not contradict disability." Tilton v. Colvin, 184 F. Supp. 3d 135, 146 (M.D. Pa. 2016) (collecting cases). Experienced counsel would have identified the error of this path taken by the ALJ, but Marks, unaided by counsel, was left trying to respond to this inappropriate question and justify the fact of her pregnancy, something she should have never been compelled to do. (Tr. 46-7).
Second, the ALJ's decision prematurely discounted Marks' mental impairments, finding at Step 2 that these impairments did not meet the de minimis threshold for finding a condition severe, even though an examining expert concluded that Marks suffered from marked impairments in multiple spheres of functioning. The approach taken by the ALJ on this score was inconsistent with the legal standards that govern Step 2 analysis of disability claims. Step 2 of this sequential analysis is the first substantive benchmark an ALJ must address and is governed by familiar legal standards:
With respect to this threshold showing of a severe impairment, the showing required by law has been aptly described in the following terms: "In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a 'de minimus screening device to dispose of groundless claims.' McCrea v. Comm. of Soc. Sec.,370 F.3d 357, 360 (3d Cir.2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir.2003). 'Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.' Id." Velazquez v. Astrue, No. 07-5343, 2008 WL 4589831, *3 (E.D.Pa., Oct.15, 2008). Thus, "[t]he claimant's burden at step two is 'not an exacting one.' McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir.2004). This step should be 'rarely utilized' to deny benefits. Id. at 361. Rather, ... [a]n individual should be denied benefits at step two only if the impairment he presents is a 'slight abnormality' that has 'no more than a minimal effect on [his] ability to work.' Id." Kinney v. Comm'r of Soc. Sec., 244 F. App'x 467, 469-70 (3d Cir.2007). Accordingly, "[d]ue to this limited function, the Commissioner's determination to deny an applicant's request for benefits at step two should be reviewed with close scrutiny." McCrea v. Commissioner of Social Sec., 370 F.3d 357, 360 (3d Cir.2004).Dotzel v. Astrue, No. 1:12-CV-1281, 2014 WL 1612508, at *4 (M.D. Pa. Apr. 22, 2014). Furthermore,
[E]ven if an ALJ erroneously determines at step two that one impairment is not "severe," the ALJ's ultimate decision may still be based on substantial evidence if the ALJ considered the effects of that impairment at steps three through five. However, where it appears that the
ALJ's error at step two also influenced the ALJ's RFC analysis, the reviewing court may remand the matter to the Commissioner for further consideration. See Nosse v. Astrue, No. 08-[CV-1173, 2009 WL 2986612, *10] (W.D.Pa. Sept.17, 2009).
Stouchko v. Comm'r of Soc. Sec., No. 1:12-CV-1318, 2014 WL 888513, at *10 (M.D. Pa. Mar. 6, 2014).
McClease v. Comm. of Soc. Sec., No. 8-CV-1673, 2009 WL 3497775, *10 (E.D. Pa. Oct. 28, 2009); see also Salles v. Comm. of Soc. Sec., 229 Fed. App'x 140, 145, n. 2 (3d Cir. 2007) (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) ("Because the ALJ found in Salles's favor at Step Two, even if he had erroneously concluded that some of her impairments were non-severe, any error was harmless.").
Simply put, "because step two is to be rarely utilized as basis for the denial of benefits, [] its invocation is certain to raise a judicial eyebrow." McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 361 (3d Cir. 2004) (citing SSR 85-28, 1995 WL 56856, at *4 ('Great care should be exercised in applying the not severe impairment concept')). Likewise where there is a flawed analysis of a cognitive impairment at Step 2 remand is appropriate. See Childs v. Colvin, No. 1:14-CV-00462 (MAT), 2016 U.S. Dist. LEXIS 37840, at *9-*10 (W.D.N.Y. Mar. 23, 2016) ("The ALJ's failure to consider plaintiff's schizoaffective disorder at both steps two and three of the sequential evaluation process constituted reversible error because a full consideration of plaintiff's disorder could have affected the outcome of her application.").
In this case, the ALJ's decision to discount Marks' mental and emotional impairments at Step 2 was erroneous, and that error clearly influenced the ALJ's RFC analysis. Given the de minimis nature of this Step 2 screening requirement, in order to meet the step two severity test, Marks' mental impairments only needed to cause a slight abnormality that has a minimal effect on the ability to do basic work activities. This standard was amply met in Marks' case when Dr. Gipe, an examining consultative source, opined that Marks was markedly impaired in 10 different spheres of workplace functioning (Tr. 416-17); suffered from anxiety, depression, and panic disorders; displayed poor insight and judgment; was unable to manage her own personal funds; demonstrated impaired attention, memory and concentration skills; lacked any sense of orientation, and reportedly had no idea of the current date at the time of this examination. (Tr. 413). The ALJ's Step 2 error also clearly influenced the subsequent analysis of this claim, since the RFC prescribed by the ALJ in Marks' case provided for no meaningful mental limitations upon the plaintiff in the workplace. Therefore, this error clearly prejudiced Marks in the presentation of her case.
Finally, the ALJ failed to give meaningful consideration to Marks' obesity, concluding that Marks, who weighed 326 pounds, could "have frequent stairs, balance, kneel, stoop, crouch and crawl." (Tr. 19). With respect to this aspect of the ALJ's decision, the leading case addressing this issue is Diaz v. Comm'r of Soc. Sec., 577 F.3d 500 (3d Cir. 2009). In Diaz, an ALJ found at Step 2 of the analytical process that Diaz's obesity was a severe impairment, but then neglected to address the exacerbating effect of this condition at Step 3 or in any other subsequent steps in the disability analysis.
On these facts, the Court of Appeals remanded the case for further consideration by the Commissioner and provided guidance regarding the duty of articulation required from ALJs in this setting. Thus, the Court of Appeals explained that "an 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, 577 F.3d at 504. While imposing this responsibility of articulation upon ALJs, the appellate court did not endeavor to impose some strict formulaic requirements upon these administrative adjudicators. Quite the contrary, the court made it clear that: "The ALJ, of course, need not employ particular 'magic' words: '[Case law] does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.' " Diaz, 577 F.3d at 504 (citations omitted).
Thus, fairly construed, Diaz holds that where an ALJ has defined a claimant's obesity as a severe impairment at Step 2 of this analysis, there is a basic duty of articulation that is owed the claimant, explaining how that obesity affects the issue of disability. Applying this analytical paradigm, following Diaz, it has been held that a cursory assurance that an ALJ has considered a claimant's obesity, without more, may be insufficient to satisfy the requirement that "an 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, 577 F.3d at 504; see also Sutherland v. Berryhill, No. 3:17-CV-00124, 2018 WL 2187795, at *9 (M.D. Pa. Mar. 6, 2018), report and recommendation adopted sub nom. Sutherland v. Berryhill, No. CV 3:17-0124, 2018 WL 2183359 (M.D. Pa. May 11, 2018).
In this case, the ALJ acknowledged a responsibility to consider Marks' obesity (Tr. 19, 21), but then gave scant attention to this severe impairment in the decision denying this claim for benefits. Thus, without meaningful explanation, the ALJ fashioned an RFC for Marks, a 326-pound woman with back impairments, which called upon her to perform medium work and stated that she could "have frequent stairs, balance, kneel, stoop, crouch and crawl." (Tr. 19). The unexplained notion that Marks was fit to frequently climb stairs, kneel, stoop, crouch, and crawl notwithstanding her obesity and spinal impairments simply does not satisfy the duty of articulation imposed upon ALJs by the Court of Appeals in Diaz. Therefore, this error also prejudiced Marks and further compels a remand of this case.
Yet, while case law calls for a remand and further proceedings by the ALJ in this case, nothing in our Report and Recommendation should be construed as suggesting what the outcome of that final and full analysis should be. Rather, that final assessment of the evidence must await a thorough consideration and development of this evidence on remand by an ALJ. Therefore, nothing in this Report and Recommendation should be deemed as expressing a view on what the ultimate outcome of any reassessment of this evidence should be. Rather, that task should remain the duty and province of the ALJ on remand.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner in this case should be REVERSED and this case should be REMANDED for further consideration by the Commissioner.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which
objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 18th day of May 2020.
/S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge