Opinion
CIVIL ACTION No. 16-5714
07-27-2017
CAMILLE ANGELIQUE RICHARDSON, Plaintiff v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant
REPORT AND RECOMMENDATION
Camille Angelique Richardson ("Plaintiff"), seeks judicial review, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), of the final decision of the Commissioner of the Social Security Administration ("the Commissioner"), denying her claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act. Plaintiff has filed a brief in support of her request for review, the Commissioner has responded to it, and Plaintiff has filed a reply. For the reasons set forth below, it is recommended that Plaintiff's Request for Review be granted.
I. PROCEDURAL HISTORY
The court has reviewed and considered the following documents in analyzing this case: Plaintiff's Brief and Statement of Issues in Support of Request for Review ("Pl. Br."), Defendant's Response to Request for Review of Plaintiff ("Resp."), Plaintiff's Brief in Reply to Defendant's Brief ("Reply"), and the administrative record ("R.").
On March 1, 2010, Plaintiff filed applications for DIB and SSI alleging disability, since July 16, 2008. R. 554. Her claims were denied initially, so Plaintiff requested a hearing. Id. On April 12, 2011, a hearing was held before Anne Chain, Administrative Law Judge, sitting in Philadelphia. Id. Plaintiff, represented by Gregory Boles, Esquire, and Sherry L. Kristal- Turetzky, a vocational expert ("VE"), testified at the hearing. R. 30-91. On July 15, 2011, the ALJ, using the sequential evaluation process for disability, issued an unfavorable decision. R. 647-57. On October 25, 2012, the Appeals Council denied Plaintiff's request for review, and Plaintiff commenced a civil action in this court. R. 1-3.
The Social Security Regulations provide the following five-step sequential evaluation for determining whether or not an adult claimant is disabled:
1. If the claimant is working, doing substantial gainful activity, a finding of not disabled is directed. Otherwise proceed to Step 2. See 20 C.F.R. §§ 404.1520(b), 416.920(b).
2. If the claimant is found not to have a severe impairment which significantly limits his physical or mental ability to do basic work activity, a finding of not disabled is directed. See 20 C.F.R. §§ 404.1520(c), 416.920(c).
3. If the claimant's impairment meets or equals criteria for a listed impairment or impairments in Appendix I of Subpart P of Part 404 of 20 C.F.R., a finding of disabled is directed. Otherwise proceed to Step 4. See 20 C.F.R. §§ 404.1520(d), 416.920(d).
4. If the claimant retains the residual functional capacity to perform past relevant work, a finding of not disabled is directed. Otherwise proceed to Step 5. See 20 C.F.R. §§ 404.1520(f), 416.920(f).
5. The Commissioner will determine whether, given the claimant's residual functional capacity, age, education and past work experience in conjunction with criteria listed in Appendix 2, he is or is not disabled. See 20 C.F.R. §§ 404.1520(g), 416.920(g).
On December 11, 2013, this court entered an order approving and adopting the Report and Recommendation of the United States Magistrate Judge, and remanding the case for further proceedings. R. 676-92. On March 11, 2014, the Appeals Council remanded ALJ Chain's decision for further proceedings in accordance with this court's order, and ordering Plaintiff's subsequently filed claim for DIB and SSI benefits, filed on November 15, 2012, consolidated. R. 554.
On August 25, 2014, a second hearing was held before ALJ Jay Marku. R. 606-43. Plaintiff, represented by Rita Bonner, Esquire, and Christine A. Carrozza-Slusarski, a VE, testified at the hearing. Id. On October 23, 2014, the ALJ, using the sequential evaluation process for disability, issued an unfavorable decision. R. 696-709. On September 4, 2015, the Appeals Council granted Plaintiff's request for review and remanded this case for further administrative proceedings. R. 715-20.
On January 5, 2016, a third administrative hearing was held before ALJ Sandra J. Morales-Rosa. R. 573-605. Plaintiff, represented by Stephanie M. Imbesi, Esquire, and Alina Kurtanich, a VE, testified at the hearing. Id. On March 21, 2016, the ALJ, using the sequential evaluation process for disability, issued an unfavorable decision. R. 554-65. On September 9, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final determination of the Commissioner. R. 544-46. This case was referred to the undersigned by the Honorable Jan E. DuBois, under the authority of 28 U.S.C. § 636(b)(1)(B), for preparation of a Report and Recommendation.
II. FACTUAL BACKGROUND
A. Personal History
Plaintiff, born on October 16, 1970, was thirty-seven (37) years old on the alleged disability onset date, and forty-five (45) years old at the time of the most recent administrative hearing. R. 563, 578. She has past relevant work as a cashier and a nurse's aide. R. 592. At the time of the hearing, Plaintiff lived with her 20-year-old daughter. R. 578.
B. Plaintiff's Testimony
At the most recent administrative hearing, Plaintiff testified that she was 45 years old and single. She is the parent of three children, then aged 29, 27 and 20. R. 578. Plaintiff lived with her 20 year old daughter, who was diagnosed with schizophrenia. R. 578, 581. Their only sources of income were Plaintiff's daughter's disability benefits and proceeds from renting rooms to acquaintances needing temporary housing. R. 578-80, 581.
Plaintiff finished high school and obtained an Associates' Degree in the Science of Criminal Justice. R. 582. She last worked as a cashier at BJ's Wholesale Club, but was fired from that job because of excessive absenteeism related to back pain. R. 583. She did not seek work after losing that job, and testified that she cannot work because of pain, the effects of medication on her ability to concentrate, irritability and lack of sleep. R. 584. Prior to her work at BJs, Plaintiff worked at Albert Einstein Hospital as a nurse's aide for approximately 3 years. That job ended in 2006 when Plaintiff injured her back while lifting a patient. R. 589-9-. Since that time, she has received treatment including epidurals, medication, physical therapy, and cortisone injections, but no treatment has provided more than temporary relief. R. 584-85. Pain makes Plaintiff irritable, and her medication makes her sleepy, groggy and disoriented. Additionally, she experiences hallucinations as a side effect of her medication. R. 585, 589. Functionally, Plaintiff can sit for 5 to 10 minutes before back pain forces her to shift positions or stand up. R. 590. She can stand for 10 to 15 minutes, and walk for up to 10 minutes. R. 590-91. Her most comfortable position is lying down, but even this position does not relieve her pain completely, and as a result, Plaintiff has trouble sleeping. R. 591. Plaintiff can use her cane to retrieve items she has dropped. R. 592.
With respect to her activities of daily living, Plaintiff testified that when she awakens, her daughter brings her pans of water and a portable commode, helps her wash and dress and brings her breakfast. R. 585. Plaintiff takes her medication then lies down, disoriented, until her next scheduled dose. Her daughter brings her lunch, then Plaintiff takes her medication and is "out of it again." Id. In sum, Plaintiff testified that "[p]retty much I'm just on medication, just out of it for most, for the day." Id. Plaintiff does not perform any housework, and relies on her daughter to cook, clean and care for her. R. 586-87. Plaintiff and her daughter do not go out, or invite friends over. R. 586-87. With respect to providing care for her daughter, Plaintiff testified that she ensures that her daughter takes her medication; she is the payee for her daughter's Social Security benefits. R. 587-88.
Plaintiff sleeps on the first floor of her home and does not use the second floor bathroom. R. 579-80. She describes walking up the steps as "torture." R. 592. She estimates she uses the stairs once or twice per week. Id.
Plaintiff explained that she was wearing her coat during the hearing because it was too painful to remove it, even with the assistance of her counsel. R. 588. She confirmed that the cane she was using had been prescribed by her doctor, as had a back brace in the past. Id. Plaintiff stated that she was 5 feet 7 inches tall and weighed 265 pounds. R. 589. Plaintiff has a driver's license, but does not drive because she cannot sit, bend and turn. R. 580-81. She does not use public transportation. She relies on her brother and sister-in-law to provide transportation. R. 5 81.
Neither the ALJ nor Plaintiff's counsel elicited testimony to specify any limitations Plaintiff experienced as a result of her mental health condition. However, the ALJ did address with Plaintiff and her counsel the absence of record evidence of mental health treatment. R. 595. Counsel noted that Plaintiff's primary care physician had been providing medication for depression and anxiety, but that Plaintiff was not otherwise receiving treatment for any mental health condition. R. 596. Counsel requested that the ALJ obtain a psychiatric consultative evaluation of Plaintiff, if the ALJ believed the record was deficient with respect to evidence of a severe mental impairment. Id. The ALJ declined, noting again that the record evidence did not support a finding of mental health problems, and that Plaintiff's demeanor during the hearing suggested that she did not, in fact suffer from a severe mental condition. R. 603-04. As to support in the testimony, the ALJ noted in particular that Plaintiff was the payee for her daughter's disability payments, and made sure that both she and her daughter took all of their medications daily, stating, "[s]omeone with a severe mental condition is not expected to be able to do any of that." R. 604.
C. Vocational Testimony
The VE described Plaintiff's past work as a cashier as unskilled, light work, SVP: 2; and her work as a nurse's aide as semi- skilled, medium work, SVP: 4. R. 592. The ALJ asked the VE to consider an individual of the same age, education and background as Plaintiff, with the following limitations:
"Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength . . . [a] person does not gain work skills by doing unskilled jobs." 20 C.F.R. § 404.1568(a); 416.968(a).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. §§ 404.1567(b); 416.967(b).
The Directory of Occupational Titles ("DOT") lists a specific vocational preparation ("SVP") for each occupation. "SVP refers to the training that would be needed for a position." Meloni v. Colvin, 109 F.Supp.3d 734, 742 (M.D. Pa. 2015). "Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT." SSR 00-4P, 2000 WL 1898704, at *3 (2000).
"Semi-skilled work is work which needs some skills but does not require doing the more complex work duties. Semi-skilled jobs may require alertness and close attention . . . or other types of activities which are similarly less complex than skilled work, but more complex than unskilled work." 20 C.F.R. §§ 404.1568(b); 416.968(b).
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 404.1567(c); 416.967(c).
The person can lift 20 pounds occasionally, 10 pounds frequently. The same for pushing and pulling except for foot controls need to be operated frequently as opposed to constantly on both feet. . . . In terms of standing, walking and sitting the person can sit six hours in an eight-hour work day, stand and walk four hours. The person can occasionally climb ramps and stairs, never climb ladders, ropes or scaffolds. Occasionally balance, occasionally, stoop, occasionally kneel, occasionally crouch and occasionally crawl. The person can never work at unprotected heights, occasionally moving, mechanical parts. Never operate a motor vehicle. Occasionally exposed to humidity and wetness. Occasionally exposed to dust, odors, fumes and any other pulmonary irritants. Occasionally exposed to extreme cold and heat. Occasionally exposed to vibration. The person is also limited to simple and routine tasks.R. 593. This individual could not perform Plaintiff's past work, according to the VE. Id. She could, however, perform other work. Examples provided by the VE included (1) ticketer (light, unskilled work, 260,000 jobs available nationally); (2) sorter (light, unskilled work, 280,000 jobs available nationally); and (3) mail clerk (light, unskilled work, 270,000 jobs available nationally). R. 593-94. The VE confirmed that her testimony was consistent with the DOT. R. 594. Additionally, she explained that, notwithstanding the ALJ's limitation to four hours standing and walking, which is not consistent with the DOT's description of light work, based on other rehabilitation publications and the VE's experience and education, the hypothetical individual could perform the jobs identified. Id. The VE noted that all of the jobs included a sit/stand option, which she stated was consistent with being able to stand and walk four hours in an eight-hour work day. Id.
The ALJ's second hypothetical added the following limitations:
The person is limited to frequently reaching overhead. . . as opposed to constantly. The person can never kneel or crawl and the person is also limited to simple work, simple work related decisions. Any kind of task can be accommodated by normal breaks.R. 595. The VE testified that this individual could perform the sorter and mail clerk jobs identified, but not ticketer. The individual could perform work as an electronic worker (light, unskilled work, 350,000 jobs available nationally). Id.
The ALJ added the following limitations in the third hypothetical:
[T]he person would be limited to frequent contact with supervisors, frequently coworkers, occasionally with the public.R. 597. This individual, according to the VE, could perform the jobs previously identified. For the last hypothetical, the ALJ added that the individual described in the third hypothetical would be off task 20% of a normal workday. Id. The VE further opined that the individual could not perform the jobs identified, or any other work, if she was off task 20% of the day. R. 597-98.
Counsel elicited testimony from the VE, regarding an individual of the same age, education and background as Plaintiff, with the following limitations:
[L]imited to standing and walking for two hours, sitting for six hours in an eight-hour work day, and can never climb, balance, stoop, kneel, crouch or crawl. . . . [Able to lift] ten pounds occasionally.R. 598-99. This individual, according to the VE, could not perform the jobs identified, but could perform work as (1) a ticket checker (sedentary work, 150,000 positions available nationally); (2) small parts assembler (sedentary work, 225,000 positions available nationally); and (3) document preparer (sedentary work, 100,000 positions available nationally). R. 600. Counsel inquired whether the individual would be able to perform these jobs if she required a ten minute break every hour. The VE related that there would be no jobs for that individual. Similarly, if the individual could not sustain concentration or attention for more than one-half hour at a time, there would be no jobs available. Id.
The ALJ followed up by asking the VE whether any of the jobs identified in response to counsel's questioning included postural requirements that would preclude the hypothetical individual from performing them. R. 601. In particular, the ALJ wanted to know whether an inability to stoop would preclude the individual from performing the identified work. The VE responded that it would depend on the individual's unique situation. R. 602. The ALJ stated that the record, in any event, did not support never stooping. R. 602-03.
III. THE ALJ'S FINDINGS
In her decision, the ALJ issued the following findings:
1. [Plaintiff] meets the insured status requirements of the Social Security Act through June 30, 2014.
2. [Plaintiff] has not engaged in substantial gainful activity since June 16, 2008, her alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. [Plaintiff] has the following severe impairments: degenerative disc disease of the lumbar spine with left L5 radiculopathy; degenerative disc disease of the cervical spine; and obesity (20 CFR 404.1520(c) and 416.920(c)).
4. [Plaintiff] does not have any impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix I (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that [Plaintiff] can lift, carry, push and/or pull 20 pounds occasionally, and 10 pounds frequently. She can sit six hours, and stand and/or walk four hours in an eight-hour workday. She can frequently operate foot controls bilaterally. [Plaintiff] can frequently reach overhead, and has no limitations to reach in any other direction. She can handle, finger or feel with either upper extremity without limitation. She can occasionally climb ramps and stairs, balance, stoop, and crouch, but can never kneel, crawl, or climb ladders, ropes or scaffolds. [Plaintiff] has no visual or communicative limitations. She can never work at unprotected heights or operate a motor vehicle. She can occasionally work around moving mechanical parts. [Plaintiff] can occasionally be exposed to extreme cold and heat, humidity, wetness, vibration, and dusts, gases, fumes or other pulmonary irritants. Because of symptoms associated with her combined impairments and her medications, [Plaintiff] is restricted to simple, routine tasks, and simple work decisions (20 CFR 404.1567(b) and 416.967(b)).
6. [Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. [Plaintiff] was born on October 16, 1970 and was 37 years old, which is defined as a younger individual, on her alleged disability onset date (20 CFR 404.1563 and 416.963). She is currently age 45.
8. [Plaintiff] has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that [Plaintiff] is "not disabled," whether or not [Plaintiff] has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).R. 556-58, 563-64.
10. Considering [Plaintiff's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform (20 CFR 404.1569, 404.1569(a), 404.1568(d), 416.969, and 416.969(a)).
11. [Plaintiff] has not been under a disability, as defined in the Social Security Act, from July 16, 2008, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
IV. DISCUSSION
A. Standard of Review
Judicial review of the Commissioner's final decision is as follows. The Commissioner's findings of fact will not be disturbed, if they are supported by substantial evidence. Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). Substantial evidence is not "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 quotation omitted). It is more than a mere scintilla of evidence but may be less than a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Overall, this test is deferential to the ALJ and the court should affirm the ALJ's findings of fact that are supported by substantial evidence, even when the court, acting de novo, might have reached a different conclusion. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986), cert. denied, 482 U.S. 905 (1987). Indeed, the court is not permitted to weigh the record evidence. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). On the other hand, the Commissioner's legal conclusions are subject to de novo review. Poulos, 474 F.3d at 91; Schaudeck, 181 F.3d at 431.
B. Burden of Proof in Disability Proceedings
In order to be found "disabled" under the Act, Plaintiff must carry the initial burden of demonstrating that she is unable to engage in "any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a); § 416.905(a). Plaintiff may establish a disability through: (1) medical evidence meeting one or more of the serious impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1; or (2) proof that the impairment is severe enough that Plaintiff cannot engage in any type of "substantial gainful work which exists in the national economy." Heckler v. Campbell, 461 U.S. 458, 460 (1983); 42 U.S.C. § 423(d)(2)(A).
Under the first method, Plaintiff is considered per se disabled by meeting one of the "listed" impairments." Heckler, 461 U.S. at 460. Under the second method, Plaintiff must initially demonstrate that a medically determinable impairment prevents her from returning to her past employment. See Brown, 845 F.2d at 1214. If Plaintiff proves that her impairment results in functional limitations to performing her past relevant work, then the burden of proof shifts to the Commissioner to prove that work does in fact exist in the national economy which Plaintiff is capable of performing given her age, education, work experience and residual functional capacity. See Poulos, 474 F.3d at 92; Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
C. Review of the Administrative Law Judge's Decision
Applying the sequential evaluation process, the ALJ determined that Plaintiff could perform work that exists in substantial numbers in the national economy; therefore, the ALJ denied her application for DIB and SSI benefits. R. 554-65. Plaintiff contends that the ALJ erred by: (1) discounting the opinions of Plaintiff's primary care physician and her examining physicians, Pl. Br. at 3-15; and (2) failing to develop the record regarding Plaintiff's alleged mental health impairments, Pl. Br. at 15-19. The Commissioner counters that the ALJ's decision is supported by substantial evidence. Resp. at 3-12.
1. The ALJ's decision to accord little weight to the consistent opinions of Plaintiff's treating physician and the consultative examiners as to Plaintiff's postural limitations was not supported by substantial evidence, requiring remand.
Plaintiff contends that the ALJ erred when she discounted the opinions of Dr. Forman (Plaintiff's treating physician) and Drs. Marks and Ross (both consultative examiners), that Plaintiff was limited to, at most, sedentary work and, in particular, could not engage in any postural activities. Pl. Br. at 3-15. The Commissioner counters that the ALJ's assessment of the opinions was supported by substantial evidence. Resp. at 3-9. This court agrees with Plaintiff, and recommends remand to permit the ALJ to reconsider the opinion evidence and, if necessary, to obtain additional evidence from a VE.
When the record contains conflicting opinions from medical providers, the ALJ must determine the appropriate weight to assign each opinion. Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 505 (3d Cir. 2009) (the ALJ is "free to choose the medical opinion of one doctor over that of another."). Here, however, the medical opinions do not conflict, particularly with respect to Plaintiff's inability to engage in certain postural activities. In such circumstances, a treating physician's report should be accorded great weight, and, where supported by medical evidence of record, and not inconsistent with other substantial evidence, controlling weight. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (citing Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)). The opinions of state agency consultants, too, warrant significant consideration, in light of their "expertise in what constitutes a disability for social security purposes." Packard v. Astrue, 2012 WL 4717890, at *4 (E.D. Pa. Oct. 4, 2012) (citing Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2012)). The ALJ should consider the relationship between the doctor and the claimant in according weight to conflicting opinions. Packard, 2012 WL 4717890, at *4 (citing 20 C.F.R. § 404.1527(c)).
Here, the opinions of Drs. Forman, Marks and Ross are fairly consistent as to the degree of limitation Plaintiff experiences as a result of back and leg pain, particularly with respect to postural limitations. Dr. Forman, Plaintiff's treating physician, opined in November 2010 that Plaintiff could not sit for more than one hour without needing to shift positions, could not stand or walk more than 30 minutes at a time, and could not bend, stoop, kneel or climb. R. 524. On August 12, 2010, Dr. Marks, a State agency consultant, examined Plaintiff and opined that she could lift/carry 10 pounds, sit for six hours at a time, stand or walk for two hours, and never engage in postural activities (bend, kneel, stoop, crouch, balance, or climb). R. 288-96 (written report, Medical Source Statement, and range of motion charts). On May 16, 2013, Dr. Ross, a state agency consultant, examined Plaintiff and opined, in a Medical Source Statement, that Plaintiff could occasionally lift and carry up to 10 pounds, sit or stand for 30 minutes at one time, sit for four hours, stand for two hours and walk for one hour in an eight-hour work day, could occasionally reach, push and pull with her upper extremities, and could never engage in postural activities (climb, balance, stoop, kneel, crouch or crawl). R. 929-40. The ALJ accorded little weight to all of these opinions and found that Plaintiff was capable of a limited range of light work, including the ability to "climb ramps or stairs, balance, stoop and crouch." R. 558, Finding of Fact 5. R. 561-63. Her decision is not supported by substantial evidence.
The ALJ discussed the medical record at length. R. 560-63. This included an examination of the results of objective testing including MRIs in 2006 and 2007 (which showed bulging, though no impingement at L3-4 and L4-5, and were consistent with degenerative joint disease); electrodiagnostic studies (indicating the presence of radiculopathy), and 2012 x-rays (showing mild to moderate lumbar spondylosis). R. 560, 562. Additionally, she examined the treatment notes of Drs. Forman and Smith, and the examination notes of Drs. Marks and Ross. R. 560-63.
The record reflects that Dr. Forman, Plaintiff's treating physician from May 2006 through the present, treated her regularly for low back pain with radiation into her left leg since shortly after her February 2006 injury. Exhibits 11F, 17F, 18F, 19F. As the ALJ's discussion of Dr. Forman's treatment notes reflect, at her initial visit, Plaintiff complained of pain in her low back and left leg following that injury. R. 560 (citing R. 358-60). Upon physical examination Plaintiff walked with an antalgic gait and required assistance getting on and off the examination table. She exhibited pain upon palpation in her lumbosacral spine. Id. Dr. Forman diagnosed posttraumatic lumbosacral strain and sprain with myofascial pain syndrome and lumbar radiculopathy. He rated her condition poor. No prognosis could be made at that time. R. 560 (citing R. 360).
Dr. Forman, together with Drs. Lincow and Smith, treated Plaintiff with steroid injections, and chiropractic treatment, but she did not experience relief. She was also prescribed a variety of medications, including opioids, for pain management, and anti-anxiety medication. R. 560 (citing Exhibits 13F, 14F, 18F, and 19F). Included in Exhibit 18F is Drs. Forman and Lincow's October 2, 2007 report in which they opine that Plaintiff was, at that time, "unable to do any type of gainful employment." R. 382. The ALJ correctly accorded little weight to that ultimate opinion, because "[t]he ALJ - not treating or examining physicians or State agency consultants - must make the ultimate disability and RFC determinations." Plummer, 186 F.3d at 429. The ALJ rejected the opinion for the additional reason that it was prepared before Plaintiff's date last insured, at a time when she was working part-time. R. 561. Notwithstanding the ALJ's treatment of the October 2, 2007 report, the findings on physical examination reported therein confirm that Plaintiff, despite treatment, was still experiencing back and leg pain that she described as 9-10 out of 10 in terms of severity, and that interfered with her activities of daily living. R. 381-82.
The record reflects - and the ALJ acknowledges - that Plaintiff continued to experience pain despite treatment. In his November 29, 2010 treatment notes, Dr. Forman recorded that Plaintiff suffered severe chronic low back pain with pain radiating down her left leg. R. 562 (citing R. 524). On examination, he observed an antalgic gait, decreased range of motion of the cervical spine, spasm and decreased range of motion of the lumbosacral spine and bilateral straight leg raise. R. 524. Based on these observations, Dr. Forman opined that Plaintiff could not sit for more than 1 hour without having to shift position; could not stand or walk for more than 30 minutes at a time; was unable to bend, stoop or kneel; and that she was unable to work. Id. The ALJ accorded little weight to Dr. Forman's opinion, on the ground that the extreme limitations contained therein were not supported by the objective medical evidence, and, in particular, by certain findings of Dr. Marks, who examined Plaintiff in August 2010. R. 562 (citing Exhibit 5F).
Dr. Marks, as noted, is a State agency consultant who examined Plaintiff on August 12, 2010. His examination revealed positive straight leg test bilaterally and decreased range of motion in the cervical and lumbar spine. R. 291, 296. Based on his examination of Plaintiff, Dr. Marks opined that Plaintiff could lift and carry 10 pounds, stand and walk for 2 hours and sit for 6, perform limited pushing and pulling with her upper extremities and never engage in postural activities. R. 291, 294. Thus, contrary to the ALJ's assertion, Dr. Marks' findings support, rather than contradict, Dr. Forman's opinion.
Dr. Ross, a second State agency consultant, examined Plaintiff on May 16, 2013 and, like Drs. Forman and Marks, found decreased range of motion in Plaintiff's lumbar spine. R. 932. He ordered x-rays of Plaintiff's lower back, which showed mild to moderate lumbar spondylosis. R. 934. In his Medical Source Statement, Dr. Ross opined that Plaintiff could occasionally lift and carry 10 pounds, sit, stand or walk for 30 minutes at a time, and, in an 8-hour work day, sit for 4 hours, stand for 2 hours, and walk for 1 hour. R. 936. Like Drs. Forman and Marks, Dr. Ross opined that Plaintiff could never engage in postural activities. R. 938.
The ALJ does not cite to evidence in the record contradicting the extreme postural limitations found by Drs. Forman, Marks and Ross. Instead, she relies on her own interpretation of the medical evidence, which she simply states does not support the noted restrictions. See R. 562, 563. This is not permitted. Plummer, 186 F.3d at 429 (citation omitted) ("an ALJ is not free to employ her own expertise against that of a physician who presents competent medical evidence.") See also Barnett v. Colvin, 2013 WL 5724511, at *8 (W.D. Pa. Oct. 21, 2013) (where treating physician's opinion describing limitations that would preclude claimant from maintaining full-time employment was uncontradicted, and no physician opined that claimant was capable of level of work reflected in ALJ's RFC assessment, decision denying benefits was not supported by substantial evidence). Because the ALJ does not cite any record evidence to support her decision to reject the opinions of Drs. Forman, Marks and Ross, it is not supported by substantial evidence.
The error is not harmless. In the course of the VE's testimony, counsel posed a hypothetical to the VE that included the postural limitations identified by Drs. Forman, Marks and Ross. The VE opined that the individual described would not be able to perform the jobs identified in response to the ALJ's hypotheticals. R. 600. She went on to identify jobs that such an individual could perform, and all of the jobs were sedentary. See R. 600. In her decision, the ALJ finds that Plaintiff is capable of a range of light work, suggesting that her RFC assessment is flawed. See R. 558, Finding of Fact 5. Moreover, the ALJ specifically asked the VE whether the sedentary jobs identified would be within the ability of an individual who could not stoop. R. 601-02. The VE responded that it would depend on the degree of limitation exhibited by the individual. R. 601-03. Without more, it is unclear that Plaintiff could perform the jobs identified, and the Commissioner, as a result, has not satisfied her burden at step 5 to establish that Plaintiff can perform work available in the national economy. As a result, it is recommended that this matter be remanded to permit the ALJ to reconsider her assessment of the opinions of Drs. Forman, Marks and Ross and, if necessary, reconsider her RFC assessment and elicit further testimony from a VE to determine whether jobs exist in the national economy that Plaintiff can perform.
As Plaintiff points out, SSR 96-9p dictates that a complete inability to stoop normally requires finding that a claimant is disabled. See SSR 96-9p, 1996 WL 374185, at *8 ("An ability to stoop occasionally, i.e., from very little up to one-third of the time, is required in most unskilled sedentary occupations. A complete inability to stoop would significantly erode the unskilled occupational base and a finding that the individual is disabled would usually apply.")
2. On remand, the ALJ should reconsider the evidence of record to determine whether a psychiatric consultative examination is required.
Plaintiff contends that the ALJ erred in failing to develop the record regarding Plaintiff's alleged mental impairment. Pl. Br. at 15-19. The Commissioner argues that the record was sufficient to permit the ALJ to find that Plaintiff did not suffer from any mental impairment, and that the ALJ's decision to deny Plaintiff's request to obtain a consultative psychiatric examination was supported by substantial evidence. Resp. at 9-12. Because it is recommended that this case be remanded to permit the ALJ to reassess the medical opinion evidence, it is recommended that on remand, the ALJ should also reconsider the evidence of record regarding Plaintiff's alleged mental impairment and her decision to deny Plaintiff's request to obtain a psychiatric consultative examination.
"The ALJ has a duty to develop the record when there is a suggestion of mental impairment by inquiring into the present state of the impairment and its possible effects on the claimant's ability to work." Plummer, 186 F.3d at 434. Here, the record, primarily Dr. Forman's treatment notes, contains references to Plaintiff's depression and anxiety. Dr. Forman diagnosed Plaintiff with generalized anxiety disorder and depression. See R. 277-286, 457-64, 524-27, 901-02, 904-06, 908-21, 946, 968, 970, 976). Dr. Forman prescribed Cymbalta and Klonopin for Plaintiff. R. 281, 916. The ALJ acknowledged that Plaintiff had been prescribed these medications for depression. R. 557. The ALJ determined, however, that Plaintiff's mental impairment was not severe. R. 557. Her determination was based on the opinion of State agency consultant Dr. Perch, who completed a form Psychiatric Review Technique on September 2, 2010, in which he concluded that Plaintiff did not have a severe impairment. R. 557 (citing R. 297-309). The ALJ accorded great weight to Dr. Perch's opinion, particularly in light of Plaintiff's lack of treatment for any mental health disorder beyond that provided by Dr. Forman. R. 557.
Although it was not error for the ALJ to accord great weight to the opinion of a State agency consultant, her consideration of Plaintiff's alleged mental impairment is, nonetheless, troubling. At the time of the hearing, the ALJ did not question Plaintiff as to the effect, if any of Plaintiff's alleged mental impairment on her ability to work. See R. 573-605. The ALJ noted the absence of record evidence as to mental health treatment. R. 595. In response, Plaintiff's counsel requested that the ALJ obtain a psychiatric consultative examination. Id. The ALJ declined, on the ground that the record did not support a finding of a severe mental impairment, and because, in the opinion of the ALJ, Plaintiff's demeanor at the hearing suggested that she did not suffer from such an impairment. R. 603-04. Moreover, the ALJ noted Plaintiff's ability to manage her daughter's disability payments and her daughter's and her own medication, stating, "[s]omeone with a severe mental condition is not expected to be able to do any of that." R. 604. It was error for the ALJ to rely on her own lay observations of Plaintiff as a basis to refuse to further develop the record. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984) (ALJ's observation of claimant's demeanor at hearing carries little weight in cases involving substantiated mental impairment).
Plaintiff testified that she experiences hallucinations and contends that her experience of hallucinations warranted further investigation into her alleged mental impairment. It is of note that Plaintiff did not attribute her hallucinations to a mental impairment, but rather testified that she had discussed the problem with her physician and he had attributed it to a side effect of her medication, rather than to a mental condition. R. 589. --------
Because it is recommended that this case be remanded to permit the ALJ to reconsider her assessment of the opinion evidence regarding Plaintiff's postural limitations, it is recommended that on remand, the ALJ reconsider the evidence of record as to Plaintiff's mental impairment, and the decision to forego a psychiatric consultative examination.
V. CONCLUSION
A thorough review of the record indicates that the Commissioner's final decision was flawed by error and not supported by substantial evidence. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 27th day of July, 2017, I respectfully recommend that:
1. The Report and Recommendation be APPROVED and ADOPTED.It be so ORDERED.
2. The Plaintiff's Request for Review be GRANTED.
3. This matter be REMANDED to the Commissioner of Social Security, pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the Administrative Law Judge should reconsider the weight to be accorded to the opinions of Drs. Forman, Marks and Ross regarding Plaintiff's postural limitations and, if necessary, reconsider her RFC assessment and obtain additional evidence from a vocational expert. The ALJ should also reconsider the record evidence regarding Plaintiff's alleged mental impairment and reconsider whether a psychiatric consultative examination should be ordered to more fully develop the record.
BY THE COURT:
/s/_________
CAROL SANDRA MOORE WELLS
United States Magistrate Judge