Opinion
Civil Action 4:22-CV-353
02-13-2023
CAROL ANN VACCARINO, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Defendant
MANNION, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Plaintiff Carole Vaccarino, an adult who lives in the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for supplemental security income under Title XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. §1383(c)(3)(incorporating 42 U.S.C. §405(g) by reference).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing the parties' briefs, the Commissioner's final decision, and the relevant portions of the certified administrative transcript, we find the Commissioner's final decision is not supported by substantial evidence.
Accordingly, it is RECOMMENDED that this case be REMANDED to the Commissioner for further consideration.
II. BACKGROUND & PROCEDURAL HISTORY
A. Procedural Background
On January 14, 2019, Plaintiff protectively filed an application for supplemental security income under Title XVI of the Social Security Act. (Admin. Tr. 10; Doc. 12-2, p. 11). In this application, Plaintiff alleged she became disabled on October 16, 2014, when she was thirty-one years old. Plaintiff was thirty-five years old when she filed her application. Plaintiff alleges the following conditions cause disabling limitations: anxiety, fibromyalgia, depression, and bursitis in both hips. (Admin. Tr. 221; Doc. 12-6, p. 6). Plaintiff alleges that the combination of these conditions affects her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, concentrate, understand, follow instructions and get along with others. (Admin. Tr. 233; Doc. 12-6, p. 18). Plaintiff alleges that her impairments also affect her memory. Id. Plaintiff has at least a high school education. (Admin. Tr. 22; Doc. 12-2, p. 23). Plaintiff has no past relevant work. Id.
The record in this case also includes an earlier ALJ decision related to applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Act filed on January 8, 2015. (Admin. Tr. 58-71; Doc. 12-3, pp. 518).
On July 3, 2019, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 10; Doc. 12-2, p. 11). On October 30, 2019, Plaintiff's application was denied upon reconsideration. Id. On December 12, 2019, Plaintiff requested an administrative hearing. Id.
On September 14, 2020, Plaintiff, assisted by her counsel, appeared and testified during a telephone hearing before Administrative Law Judge Theodore Burock (the “ALJ”). Id. On October 20, 2020, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 23; Doc. 12-2, p. 24). On December 18, 2020, Plaintiff requested that the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”) review the ALJ's decision. (Admin. Tr. 197; Doc. 12-4, p. 89).
On January 7, 2022, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1-3; Doc. 12-2, pp. 2-4).
On March 10, 2022, Plaintiff filed a complaint in the district court. (Doc. 1). In the complaint, Plaintiff alleges that the ALJ's decision denying the application is not supported by substantial evidence, and improperly applies the law. (Doc. 1, ¶ 13). As relief, Plaintiff requests that the court reverse the ALJ's decision and award benefits, or in the alternative, remand this case to the Commissioner for a new hearing. (Doc. 1, ¶ 14).
On May 23, 2022, the Commissioner filed an answer. (Doc. 11). In the answer, the Commissioner maintains that the decision denying Plaintiff's application was made in accordance with the law and is supported by substantial evidence. (Doc. 11, ¶ 9). Along with her answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 12).
Plaintiff's Brief (Doc. 13), the Commissioner's Brief (Doc. 14), and Plaintiff's Reply (Doc. 15) have been filed. This matter is now ready to decide.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing Social Security Appeals generally, and the standard that applies to evaluating a claimant's symptoms.
A. Substantial Evidence Review - the Role of This Court
A district court's review of ALJ decisions in social security cases is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. 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.” Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. 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. But in an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.”
See 42 U.S.C. § 1383(c)(3); 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).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
The Supreme Court has underscored the limited scope of district court review in this field, noting that:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S.___,___, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales,
402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
In practice, this is a twofold task. First, the court determines whether the final decision is supported by substantial evidence. To accomplish this task, the court must decide not only whether “more than a scintilla” of evidence supports the ALJ's findings, but also whether those findings were made based on a correct application of the law. In doing so, however, the court is enjoined to refrain from trying to reweigh evidence and “must not substitute [its] own judgment for that of the fact finder.”
See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).
Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014).
Second, the court must ascertain whether the ALJ's decision meets the burden of articulation the courts demand to enable judicial review. As the Court of Appeals has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements . . . are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir. 2004). The ALJ, of course, need not employ particular “magic” words: “Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.” Jones, 364 F.3d at 505.
Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
B. Standards Governing the ALJ's Application of The Five- Step Sequential Evaluation Process
To receive disability benefits under 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 twelve months.” To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy.
42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § 416.905(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” In making this assessment, the ALJ considers all the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis.
Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 416.920(e); 20 C.F.R. § 416.945(a)(1).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her from engaging in any of his or her past relevant work. Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC.
42 U.S.C. § 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. § 416.912; Mason, 994 F.2d at 1064.
C. Administrative Regulations Governing the Evaluation of A Claimant's Symptoms
In this context, “symptoms” are defined as the claimant's “own description of [his or her] physical or mental impairment.” The Social Security Regulations and Rulings set out a two-step process to evaluate a claimant's symptoms.
First, the ALJ must consider whether there is an underlying medically determinable impairment that could reasonably be expected to produce the claimant's symptoms. If there is no medically determinable impairment, or if there is a medically determinable impairment but that impairment could not reasonably be expected to produce the claimant's symptoms, an ALJ will not find that those symptoms affect the claimant's ability to perform work-related activities. An ALJ does not consider whether the severity of an individual's symptoms is supported by the objective medical evidence at the first step of this analysis.
SSR 16-3p, 2017 WL 5180304 at *4.
SSR 16-3p, 2017 WL 5180304 at *3.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms caused by the claimant's medically determinable impairments.SSR 16-3p explains:
If an individual's statements about the intensity, persistence, and limiting effects of symptoms are consistent with the objective medical evidence and the other evidence of record, we will determine that the individual's symptoms are more likely to reduce his or her capacities to perform work-related activities for an adult. . . . In contrast, if an individual's statements about the intensity, persistence, and limiting effects of symptoms are inconsistent with the objective medical evidence and the other evidence, we will determine that the individual's symptoms are less likely to reduce his or her capacities to perform
work-related activities or abilities to function independently, appropriately, and effectively in an age-appropriate manner.
We may or may not find an individual's symptoms and related limitations consistent with the evidence in his or her record. We will explain which of an individual's symptoms we found consistent or inconsistent with the evidence in his or her record and how our evaluation of the individual's symptoms led to our conclusions. We will evaluate an individual's symptoms considering all the evidence in his or her record.
2017 WL 5180304 at *8.
When evaluating a claimant's symptoms, an ALJ considers: objective evidence; a claimant's statements about the intensity, persistence and limiting effects of his or her symptoms; statements made by medical sources in opinion and treatment records; and statements about a claimant's symptoms made by nonmedical sources. This evidence is evaluated based on the following factors:
(1) the claimant's daily activities;
(2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms;
(3) any factor that precipitates or aggravates the claimant's pain or other symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his or her pain or other symptoms;
(5) any treatment, other than medication, the claimant receives or has received for relief of his or her pain or other symptoms; any measures the claimant uses or has used to relieve his or her pain
or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(6) any other factors concerning functional limitations and restrictions due to pain or other symptoms.
The ALJ is required to discuss the factors pertinent to the evidence of record, but will not discuss a factor where it is not relevant.
SSR 16-3p, 2017 WL 5180304 at *8.
Although the “statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them.” The ALJ is, however, required to explain which of an individual's symptoms he or she finds consistent or inconsistent with the evidence in the record.
Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011).
SSR 16-3p, 2017 WL 5180304 at *8.
This evaluation is extremely subjective. Some claimants may experience symptoms differently and may be limited by symptoms to a greater or lesser extent than other claimants with the same medical impairments, objective evidence, and non-medical evidence. For this reason, district courts generally afford great deference to an ALJ's findings.
SSR 16-3, 2017 WL 5180304 at *4.
IV. DISCUSSION
Plaintiff raises the following issues in her statement of errors:
1. Substantial evidence does not support the ALJ's evaluation of the opinion evidence.
2. The ALJ's multiple errors with symptom evaluation compel reversal.(Doc. 13, p. 1) (emphasis removed from original).
The ALJ's Hearing Decision (Doc. 12-2, pp. 8-24) and the hearing exhibit list (Doc. 12-, pp. 25-28) present the Court with a detailed record. The Plaintiff asks this Court to reject the ALJ's analysis of this evidence and remand for further proceedings. While the Court may not substitute its own view of the evidence for that of the ALJ, we are required to determine if the ALJ adequately explained his interpretation of the evidence. Boilerplate recitations will not do. There is evidence in this record that would support a finding of “not disabled.” However, there is significant evidence to support the Plaintiff's claim of “disabled.” After careful review of the record I am persuaded by Plaintiff's arguments pointing out the insufficient analysis of the evidence favorable to the Plaintiff. The dismissive evaluation of portions of the record requires remand and further explanation.
To come to this conclusion we begin by discussing the ALJ decision and then break down his analysis following the arguments of the parties briefs.
A. The ALJ's Decision Denying Plaintiff's Application
In his October 2020 decision, the ALJ evaluated Plaintiff's application at steps one through five of the sequential evaluation process.
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity at any point between January 14, 2019, (Plaintiff's application date) and October 20, 2020, (the date the ALJ decision was issued) (“the relevant period”). (Admin. Tr. 12; Doc. 12-2, p. 13). At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: degenerative joint disease of both hips, morbid obesity, fibromyalgia, headaches, depression, anxiety disorder, and post-traumatic stress disorder. Id. The ALJ also found that Plaintiff has asthma, but that this impairment is not severe. Id. At step three, the ALJ found that, during the relevant period, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 13; Doc. 12-2, p. 14).
Between steps three and four, the ALJ assessed Plaintiff's RFC. The ALJ found that, during the relevant period, Plaintiff retained the RFC to engage in sedentary work as defined in 20 C.F.R. § 416.967(a) except:
she can occasionally balance, stoop kneel, crouch, crawl, and climb ramps and stairs. She can have no concentrated exposure to extreme cold, heat, wetness, humidity, noise, vibration, fumes, odors[,] dust,
gases, or poor ventilation. She cannot work with a noise level greater than level three. She has the mental capacity for simple, repetitive, and routine tasks in a stable work environment, with minimal changes in work setting, and no piece rate or production line work. She can interact occasionally with supervisors and co-workers and never with the public.(Admin. Tr. 14; Doc. 12-2, p. 15).
At step four, the ALJ found that Plaintiff had no past relevant work. (Admin. Tr. 21; Doc. 12-2, p. 22). At step five, the ALJ found that, considering Plaintiff's age, education and work experience, Plaintiff could engage in other work that existed in the national economy. (Admin. Tr. 22-23; Doc. 12-2, pp. 23-24). To support his conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: table worker, DOT 585.685-062; carding machine operator, DOT 681.685-030; and final assembler, DOT 713.687-018. (Admin. Tr. 23; Doc. 12-2, p. 24).
B. Substantial Evidence Does Not Support the ALJ's Explanation of Why Plaintiff's Symptoms Are Inconsistent with the Record
In her brief, Plaintiff challenges the ALJ's evaluation of Plaintiff's symptoms. Although she presents these challenges as a general argument in her statement of errors, that argument has approximately six subparts. (Doc. 13, pp. 11-17). Although Plaintiff does not challenge the ALJ's review of the objective evidence, she argues that the ALJ's consideration of the “other” evidence is defective due to a lack of explanation. I agree. To support his assessment that Plaintiff's description of the intensity and limiting effects of her symptoms is not consistent with the record, the ALJ cites in large part to evidence that does not appear to be relevant. Given this defect, the Court cannot determine whether substantial evidence supports the ALJ's symptom evaluation.
The ALJ provided the following summary of Plaintiff's symptoms:
The claimant argues she is unable to work because she has severe pain that keeps her bed bound on bad days, chronic fatigue, is restless at night due to pain, and frequently wakes up at night. She insists she has trouble dressing, only showers twice a week, only does basic hair care, and needs a handle to get up from the toilet. The claimant maintains she has difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, and seeing. She claims she must rest five to ten minutes after walking two blocks, can stand 45 minutes, sometimes cannot stand up or barely get off her couch without assistance, and needs a cane. The claimant alleges she has almost daily headaches that make her head feel like it will explode; has horrible nightmares; has a shopping problem when in a depressive state; and has difficulty remembering, completing tasks, concentrating, understanding, following instructions, and getting along with others. She claims people say she has an attitude problem, can pay attention ten minutes, does not finish what she starts, was fired from a supermarket because she did not fit in with other cashiers, and cannot handle stress or changes in routine well. The claimant alleges she feels worthless and sometimes feels like it would not be a bad thing if she does not wake up (Hearing Testimony; B3E; B8E).(Admin. Tr. 15; Doc. 12-2, p. 16).
Applying 20 C.F.R. § 416.929 and SSR 16-3p, the ALJ concluded at the first step of his symptom evaluation that Plaintiff's medically determinable impairments could reasonably be expected to cause her symptoms. No party has challenged this aspect of the ALJ's symptom evaluation.
At the second step of the symptom evaluation, the ALJ determined that Plaintiff's statements about the intensity, persistence and limiting effects of her symptoms were not entirely consistent with the medical and other evidence. (Admin. Tr. 15; Doc. 12-2, p. 16). Plaintiff argues that this evaluation is not adequately explained and, by extension, not supported. The Commissioner disagrees.
In his decision, the ALJ provides a comprehensive summary of the objective evidence and symptoms recorded in Plaintiff's treatment records, the medical opinions, and other evidence. However, he also fails to explain the basis for his conclusion that Plaintiff's mental health treatment was “conservative,” fails to explain the basis for his conclusion that Plaintiff's daily activities are inconsistent with Plaintiff's symptoms and relies on evidence of a vacation that does not support or contradict those symptoms to disregard Plaintiff's statements.
There is no dispute that an ALJ is permitted to consider a claimant's treatment history, including its frequency and the prescribed medications, when evaluating symptoms. However, in this case the ALJ characterized Plaintiff's mental health treatment as “conservative” without discussing evidence related to this factor.
Instead, he apparently relied solely on the fact that Plaintiff had not sought inpatient treatment. However, “the lack of inpatient hospitalization is not evidence of conservative treatment in the context of complex mental health disorders.”
Elijah L.S. v. Comm'r of Soc. Sec. Admin., No. 3:20-CV-1089-AR, 2022 WL 17845933 at *3 (D. Or. Dec. 22, 2022).
The record in this case demonstrates that Plaintiff sees a counselor and a psychiatrist. No detailed treatment records from Plaintiff's counselor were provided. However, in a questionnaire, Plaintiff's counselor reported that he met with Plaintiff weekly. (Admin. Tr. 639; Doc. 12-7, p. 346). Records from Plaintiff's psychiatrist demonstrate that Plaintiff was examined monthly beginning September 2018 through July 2020. She was on a regimen of Wellbutrin and Zoloft with few changes. The ALJ did not address the frequency or nature of Plaintiff's mental health treatment or the medication she was prescribed. (Admin. Tr. 18; Doc. 12-2, p. 19). The ALJ does not explain how evidence of weekly therapy sessions, monthly psychiatry appointments, and a regimen of prescribed medication for Plaintiff's mental impairments are inconsistent with Plaintiff's symptoms.
Next, the ALJ concludes that Plaintiff's daily activities are inconsistent with her physical and mental health-related symptoms. Once again, there is no dispute that an ALJ should consider this type of evidence as a factor in symptom evaluation.
However, in this case the ALJ merely lists activities with no description of how or with what frequency Plaintiff performs them. Reviewing Plaintiff's statements, her activities of daily living include that: she is able to drive 65% of the time and is too crippled by pain the other 35% of the time (Admin Tr. 35; Doc. 12-2, p. 36); she does “simple puzzle games” on her phone (Admin. Tr. 42; Doc. 12-2, p. 43); she goes on short shopping trips every few days for a little bit of food or to Dollar Tree, (Admin. Tr. 43; Doc. 12-2, p. 44); she watches television but would be able to summarize what she watched only 25% of the time because she cannot focus (Admin. Tr. 45; Doc. 12-2, p. 46); she prepares cereal or heats leftovers most days, and cooks simple meals in a crock pot once per week taking breaks as needed, (Admin. Tr. 230; Doc. 12-6, p. 15); she vacuums a 5x7 area rug, (Admin. Tr. 230; Doc. 12-6, p. 15); she is able to pay bills and count change, but is not financially responsible enough to handle bank accounts or a debit card during depressive episodes, (Admin. Tr. 231; Doc. 12-6, p. 16); she speaks with her mother on the phone once “every few days,” (Admin. Tr. 232; Doc. 12-6, p. 17); she attends a church event once per month, Id.; and she cares for two teenaged sons who live at the Milton Hershey School during the academic year. No explanation was provided as to how or what of Plaintiff's many physical and mental health-related symptoms are inconsistent with these activities. Accordingly, the Court is simply not in a position to meaningfully review the ALJ's decision.
The ALJ considered, “[i]n May 2019, the claimant's psychiatrist noted the claimant took a vacation to Las Vegas, where she also visited the Grand Canyon and Death Valley (B10F/9).” (Admin. Tr. 16; Doc. 12-2, p. 17). In that treatment record, the psychiatrist wrote:
Carol said she got back from a trip to Las Vegas where she and her twin sons, . . ., stayed with her sister....Overall she had a good time there, went to the Grand Canyon and Death Valley, and she showed me some pictures of them. She saw an old Borax mine. She said she was in a fair amount of pain, but she took Excedrin and Flexeril and that helped her to function to a reasonable degree.(Admin. Tr. 488; Doc. 12-7, p. 195). The ALJ's decision suggests that the ALJ considered this evidence along with the “longitudinal records” and concluded those records did not support Plaintiff's allegations. The evidence related to Plaintiff's May 2019 vacation, however, does not provide any detail regarding the amount of standing or walking Plaintiff did or whether Plaintiff required special accommodation. The ALJ did not develop this issue before concluding the vacation itself was inconsistent with Plaintiff's statements about her physical limitations. Plaintiff is correct that the evidence of vacation neither supports nor contradicts Plaintiff's statements.
Plaintiff also argues that The ALJ improperly relied on his own inferences from medical record notations of “no acute distress” to determine Plaintiff's RFC, citing Combs v. Berryhill, 878 F.3d 642, 647 (8th Cir. 2017) (The ALJ improperly relied on his own inferences from medical record notations of “no acute distress” and “normal movement of all extremities” to determine the claimant's RFC.). The term “acute distress” is not defined in the SS Regulations. What was distress to one doctor may have not appeared distress to another doctor. In my view this reliance on “no acute distress” is especially important when four treating providers and a state consultive examiner, found she was unable to meet the demands of the workforce.
Rheumatologist Dr. Albano-Aluquin [plaintiff unable to work due to chronic pain and cognitive dysfunction, Ex. B14, F13]; Psychiatrist Mark Heinly, M.D. [“episodes of deterioration resulted in absence or otherwise made it difficult for her to sustain age-appropriate activity,” Ex. B18F/5; B20F/5]; social worker Mark Hearn, MSW [marked and moderate limitations in mental abilities and aptitudes needed to do even unskilled work, BB18F/8]; Psychologist Dana Keener, PsyD [currently not working due to being disabled, B23F/3].
David Baker, PsyD, [marked limitations in understanding, remembering, and carrying our instructions; .. marked difficulties in responding appropriately to usual work situations and to changes in a routine work setting., B7F/6-7.]
The ALJ sites references in the record that he concludes are inconsistent with the conclusions of the people who examined her. He does not explain how being “pleasant” and cooperative” means she can perform under the requirements of a normal workplace. The ALJ credits the two-state agency psychological consultants (Dr. Garito, PhD and John Gavazzi, PsyD) because their statements are “consistent with claimant's lack of recent inpatient mental health treatment or referral to crisis intervention.” (Doc. 12.2, p. 21, TR. 20). The ALJ did not explain the significance of this lack of specific urgent treatment given the extended nature of her psychiatric and psychological treatment and her multiple psychiatric medications.
ALJ Opinion, Doc. 12-2, p. 21, TR 24.
ALJ Opinion, Doc. 12-2, p. 21, TR 20.
Even affording the appropriate deference to the ALJ's findings, remand is required in this case because the ALJ has provided little supporting explanation for the many inferences he has drawn from the so-called “normal” findings sprinkled throughout this record, especially from the records of the five professionals who concluded Plaintiff was disabled. Absent such explanation, the Court cannot meaningfully review this decision.
We recognize that the ALJ is not required to accept opinions on matters left to the Commissioner that “are inherently neither valuable nor persuasive to the issue of whether a claimant is disabled.” (Doc. 12-2, p. 22, TR 21). The reliance here on only some of their factual reporting, while ignoring their conclusions and their negative findings leads me to conclude that the ALJ substituted his own opinion for that of the medical professionals. It is hard to imagine a medical report that did not have some positive comments about a patient's progress.
[The next page contains the recommendation.]
V. RECOMMENDATION
Accordingly, I RECOMMEND that Plaintiff's request for remand be GRANTED as follows:
(1) This case should be REMANDED to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).
(2) Final judgment should be issued in favor of Carol Vaccarino by separate order.
(3) The Clerk of Court should be directed to close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.