Opinion
CASE NO. 1:18-cv-02287-CCC-GBC
2020-03-12
Steve WALTERS, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant.
Stephen J. Hogg, Carlisle, PA, for Plaintiff. Melissa A. Swauger, Shana Catherine Priore, United States Attorney's Office — Social Security, Harrisburg, PA, for Defendant.
Stephen J. Hogg, Carlisle, PA, for Plaintiff.
Melissa A. Swauger, Shana Catherine Priore, United States Attorney's Office — Social Security, Harrisburg, PA, for Defendant.
REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER
GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Steve Walters ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Act, a claimant bears the burden to demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) ; accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
In cases involving a continuing disability review ("CDR"), entitlement to benefits will be reviewed periodically. 20 C.F.R. §§ 404.1594, 416.994. A claimant is no longer entitled to benefits where the medical condition improves to the extent that the claimant can engage in substantial gainful activity. Id. To determine whether there has been medical improvement, the ALJ must compare the medical severity of the current impairment(s) to the severity of the impairment(s) present at the time of the most favorable medical decision finding the claimant disabled. See 20 C.F.R. §§ 404.1594(b)(7), 416.994(b)(7). If an impairment is one subject to temporary remissions, such will not warrant a finding of medical improvement. 20 C.F.R. §§ 404.1594(c)(3)(iv), 416.994(c)(3)(iv).
The Social Security regulations provide an ALJ with an eight-step inquiry designed to evaluate whether a claimant remains disabled. 20 C.F.R. §§ 404.1594(f), 416.994(f). The claimant bears the burden of proof through the first seven steps. Thus, the claimant must " ‘introduce evidence that his or her condition remains essentially the same as it was at the time of the earlier determination.’ " Hagans v. Commissioner of Soc. Sec., 694 F.3d 287, 308 (3d Cir. 2012), quoting, Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984). The Commissioner bears the burden at the eighth step to "present evidence that there has been sufficient improvement in the [claimant's] condition to allow the [claimant] to undertake gainful activity." Hagans, 694 F.3d at 308, quoting, Early, 743 F.2d 1002, 1007 (3d Cir. 1984) (internal quotation marks omitted). At step one, the ALJ determines whether the claimant is engaged in substantial gainful activity above the residual functional capacity. If so, then the disability has ended. 20 C.F.R. §§ 404.1594(f)(1), 416.994(f)(1). At step two, the ALJ assesses whether the claimant has an impairment or combination of impairments which meets or equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, then the disability continues. 20 C.F.R. §§ 404.1594(f)(2), 416.994(f)(2). At step three, the ALJ considers whether there has been medical improvement as defined in paragraph (b)(1). 20 C.F.R. §§ 404.1594(f)(3), 416.994(f)(3). The second example for section (b)(1) explains "[a]lthough [the claimant's] impairment is subject to temporary remission and exacerbations, the improvement that has occurred has been sustained long enough to permit a finding of medical improvement." 20 C.F.R. § 404.1594 (b)(1). Section (c)(3)(iv) states that temporary remissions "will not warrant a finding of medical improvement." 20 C.F.R. §§ 404.1594(c)(3)(iv), 416.994(c)(3)(iv). If medical improvement is shown, the analysis continues to step four and if there has been no medical improvement, the it continues to step five. 20 C.F.R. §§ 404.1594(f)(3), 416.994(f)(3). At step four, the ALJ determines whether the medical improvement found in step three relates to the claimant's ability to do work. If so, the analysis continues at step six. If not, the analysis proceeds to step five. 20 C.F.R. §§ 404.1594(f)(4), 416.994(f)(4). At step five, the ALJ considers whether one of two sets of exceptions to medical improvements apply. 20 C.F.R. § 404.1594(f)(5). The first exception provides that claimant should no longer be considered disabled where (1) substantial evidence shows that the claimant is the beneficiary of advances in medical or vocational therapy or technology related to the claimant's ability to work; (2) substantial evidence shows that the claimant has undergone vocational therapy related to the claimant's ability to work; (3) substantial evidence shows that based on new or improved diagnostic or evaluative techniques the claimant's impairments are not as disabling as considered at the time of the most recent favorable decision; (4) substantial evidence demonstrates that any prior disability was in error; or (5) the claimant is currently engaging in substantial gainful activity. 20 C.F.R. §§ 404.1594(d)(1)-(5), 416.994(d)(1)-(5). The second exception applies when: (2) the prior decision was fraudulently obtained; (2) the claimant does not cooperate; (3) the claimant cannot be found; or (4) the claimant fails to follow the prescribed treatment that would be expected to restore ability to engage in substantial gainful activity. If none of the exceptions apply, then the disability benefits continue. 20 C.F.R. §§ 404.1594(e)(1)-(4), 416.994(e)(1)-(4). If, however, one of the first exceptions apply, analysis continues at step six. 20 C.F.R. §§ 404.1594(f)(5), 416.994(f)(5). If one of the second exceptions apply, benefits will end. 20 C.F.R. §§ 404.1594(f)(5), 416.994(f)(5). At step six, the ALJ considers whether the claimant's impairment(s) are severe. 20 C.F.R. § 404.1594(f)(6). If the claimant's "current impairments in combination do not significantly limit [his / her] physical or mental abilities to do basic work activities," then those impairments will be deemed to be "not severe." Id. However, where a significant limitation is found, then the analysis proceeds to the next step. Id. At the seventh step, the ALJ will consider the claimant's current ability to perform past relevant work. 20 C.F.R. § 404.1594(f)(7). An ability to perform past relevant work precludes benefits. If the claimant cannot perform past relevant work, the analysis proceeds to the last step. At step eight, the ALJ evaluates the claimant's ability to perform other work in the national economy, considering the claimant's RFC, age, education and past work experience. 20 C.F.R. § 404.1594(f)(8).
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("court shall review only the question of conformity with such regulations and the validity of such regulations"); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008) ; Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir. 2003) (plenary review of legal questions in social security cases). Substantial evidence "does not mean a large or considerable amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ); accord Biestek v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019). The Court's review is based on the record, and the Court will "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Id. Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence "does not mean a large or considerable amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Substantial evidence is "less than a preponderance" and "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the factfinder. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g) ).
II. PROCEDURAL HISTORY
On December 21, 2011, Plaintiff was originally awarded benefits. (Tr. 17). After a continuing disability review, Plaintiff was found no longer disabled as of April 30, 2015. (Tr. 84-86). On October 19, 2017, an ALJ conducted a hearing at which Plaintiff and a vocational expert testified. (Tr. 45-64). On December 28, 2017, the ALJ issued a decision finding Plaintiff's disability ended as of April 30, 2015. (Tr. 13-25). Plaintiff sought review of the decision, which the Appeals Council denied on December 28, 2017, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 1-7).
On November 29, 2018, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On February 11, 2019, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 7, 8). On May 6, 2019, Plaintiff filed a brief in support of the appeal. (Doc. 11 ("Pl. Br.")). On June 12, 2019, Defendant filed a brief in response. (Doc. 14 ("Def. Br.")). On June 25, 2019, Plaintiff filed a reply brief. (Doc. 15 ("Reply Br.")).
III. ISSUES
On appeal, the issues are whether (1) the ALJ correctly applied 20 C.F.R. 404.1594 and 416.994 in the continuing disability review; (2) the ALJ erred in failing to account for deficits in concentration, persistence and pace despite finding that Dr. Small's moderate limitations in those areas were generally supported in the record; (3) the Appeals Council erred in refusing to exhibit the records from Pennsylvania Psychiatric Institute from October of 2017; (4) the ALJ erred in failing to apply the treating physician rule to the opinion of Dr. Hermann, and; (5) the ALJ erred in finding the Plaintiff's statements about his limitations were not consistent with the evidence and in giving the statements of the Plaintiff's wife only partial weight. Pl. Br. at 11.
IV. MEDICAL RECORD
1. Consultative Evaluation Opinion Dated June 24, 2011; Louis Laguna, Ph.D.
In June 2011, Dr. Laguna evaluated Plaintiff and rendered an opinion regarding his work-based limitations. (Tr. 441-48). For reported history, Plaintiff's longest job held was as a juvenile probation officer for about three years, leaving in June 2008 to work as a transitional living coordinator at a school. (Tr. 441). Plaintiff responded that he could not recall why he left the job as a transitional living coordinator. (Tr. 441). Dr. Laguna noted Plaintiff arrived at the appointment on time and drove himself to the appointment. (Tr. 441). Dr. Laguna noted:
Mannerisms were noteworthy in that he was distant and detached during much of the interview. He was pleasant but appeared confused much of the time and appeared to have trouble gathering his thoughts. He would pleasantly apologize when he lost his train of thought and stated, "Could you please repeat that?"
At times he appeared to not understand some of my questions and would close his eyes and seem to be trying to concentration on what it was that I was saying. I asked the claimant if he was experiencing any type of thought disturbance during the interview and he indicated that he was not....
(Tr. 42). Dr. Laguna also noted:
He said that the medication makes him drowsy but helps him to concentrate. As I mentioned above, he appeared to have difficulties concentrating during the session but apparently it is better than without the medication.
(Tr. 43). Plaintiff reported that after he started his job as a transitional living coordinator, he "started to have symptoms of disorganized thinking and periods where he said he cannot recall events either at work or in his personal life around that time." (Tr. 444). Plaintiff reported he was living with a girlfriend when he started to experience symptoms of stress and difficulty concentrating and she told him about significant auditory hallucinations but, he could not remember what she said. (Tr. 444). For Plaintiff's mental status Dr. Laguna described:
He was polite and cooperative but clearly appeared to have difficulty concentrating and seemed to be in some distress, although he did not admit it. His speech was somewhat lethargic and he was distant and disconnected.
He described his mood as "good," yet I found it difficult to accept this, given some of the distress that he exhibited facially as he was having trouble concentrating. When I assessed for depression, the claimant denied symptoms of depress ion. He told me that the medication is helping him and that it eliminates hallucinations or paranoia.
I explained to the claimant that, although he was telling me his mood was good, he appeared anxious and that it was clear that he was having trouble concentrating but he did not seem to comprehend this and again stated, "I'm in a good mood." I found this disconnect between his clinical presentation and his reported affect interesting and is probably evidence of his illness.
He was able to think abstractly, as evidenced by his ability to interpret simple proverbs like "You can't judge a book by its cover" and "Every cloud has a silver lining." The claimant described his memory as "pretty good." However, his remote memory was clearly impaired. Although his recent and recent past memory were generally intact, when I asked him a number of questions about his life at any point prior to about three years ago, he frequently indicated, "I can't remember" or "It's all a blank."
He denied problems with impulse control at the present time but clearly has a history, given his self-inflicted stab wound about a year and a half ago. Judgment is fair. Insight is poor.
(Tr. 444-45). Plaintiff reported he was able to do some cooking, cleaning, shopping, managing his personal care, health, hygiene and funds. (Tr. 445). Dr. Laguna diagnosed Plaintiff with schizophrenia-paranoid type and described:
In summary, this young man introduces an interesting clinical picture. He reports being asymptomatic. However, his presentation is indicative of apathy, detachment and difficulty concentrating. According to the claimant, he never experienced symptoms of mental illness until a couple of years ago. This was after a very successful high school and college career as well as having reportedly done well professionally his first few years out of college. Apparently, he had sudden onset of paranoia and disorganization requiring two hospitalizations.
Although initially it appeared that this was probably related to onset of depression with psychosis, his current affect and residual symptoms appear to be more in line with onset of Schizophrenia. Fortunately, the majority of his symptoms appear to be well controlled with his current medication.
(Tr. 445). After the clinical narrative, Dr. Laguna completed a form regarding the severity of Plaintiff's work-based limitations. (Tr. 447-448). Dr. Laguna opined Plaintiff had no limitations in the ability to understand, remember, and carry out instructions. (Tr. 447). Dr. Laguna opined Plaintiff had moderate limitations in the ability to: (1) interact appropriately with the public, supervisors, and co-workers; (2) respond appropriately to work pressures in a usual work setting; and (3) respond appropriately to changes in a work setting. (Tr. 447). In support of his opinion, Dr. Laguna noted Plaintiff was "quite guarded and suspicious. He does not report these [symptoms] but they are evident behaviorally." (Tr. 447).
2. State Agency Non-Examining Opinion Dated July 15, 2011: John Gavazzi, Psy. D.
In July 2011, Dr. Gavazzi reviewed the medical record and rendered an opinion regarding the severity of Plaintiff's work-based limitations. (Tr. 66-). Dr. Gavazzi noted a record dated February 10, 2011, describing Plaintiff's inpatient treatment due to a self-inflicted stab wound and was diagnosed with depressive disorder with psychotic features. (Tr. 69). Dr. Gavazzi noted a record dated June 23, 2011, wherein Plaintiff was referred for paranoid behavior and suicidal ideation. (Tr. 69). Dr. Gavazzi determined Plaintiff had medically determinable impairments of "schizophrenia and other psychotic disorders" and "affective disorders." (Tr. 69). Dr. Gavazzi opined Plaintiff experienced mild limitations of activities of daily living ("ADL"), moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace, and one or two episodes of decompensation of extended duration. (Tr. 70). For Plaintiff's Residual Functional Capacity ("RFC") Dr. Gavazzi opined Plaintiff was not significantly limited in the ability to: (1) remember locations and work-like procedures; (2) remember very short and simple instructions; (3) carry out very short and simple instructions; (4) maintain attention and concentration for extended periods; (5) perform activities with a schedule, maintain regular attendance, and be punctual within customary tolerances; (6) sustain and ordinary routine without special supervision; (7) work in coordination with or in proximity to others without being distracted by them; (8) make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (9) ask simple questions or request assistance; (10) get along with coworkers or peers without distracted them or exhibiting behavioral extremes; (11) maintain socially appropriate behavior and to adhere to basic standard of neatness and cleanliness; (12) be aware of normal hazards and take appropriate precautions; (13) travel in unfamiliar places or use public transportation, and; (14) set realistic goals or make plans independently of others. (Tr. 71-72). Dr. Gavazzi opined Plaintiff experienced moderate limitations in the ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) interact appropriately with the general public; (4) accept instructions and respond appropriately to criticism from supervisors, and; (5) respond appropriately to changes in the work setting. (Tr. 71-72). In support of the opinion Dr. Gavazzi explained Plaintiff: (1) can understand, retain, and follow simple job instructions, i.e., perform one-and-two step tasks; (2) can perform simple, routine, repetitive work in a stable environment; (3) struggles with social skills; (4) communicates clearly; (5) relates appropriately to familiar others; (6) behaves predictably in most social situations; (7) is able to maintain socially appropriate behavior; (8) can perform the personal care functions needed to maintain an acceptable level of personal hygiene; (9) presents with symptoms of both a mood disorder and a psychotic disorder ; (10) participated in two inpatient psychiatric admissions; (11) currently takes psychotropic agents; and, (12) presents stable on medication. (Tr. 71-72). Dr. Gavazzi stated aspects of Dr. Laguna's June 2011 opinion were consistent with the residual functional capacity and assigned appropriate weight as consistent with the medical record and Dr. Gavazzi's current opinion. (Tr. 73). Dr. Gavazzi concluded Plaintiff could perform simple, routine, repetitive work in a stable environment. (Tr. 73).
3. State Agency Non-Examining Opinion Dated February 17, 2015: Richard Small, Ph.D.
In the February 2015 psychiatric review technique, Dr. Small indicated that medical improvement has occurred based on the medical category of Listing 12.03 for "schizophrenic, paranoid and other psychotic disorders." (Tr. 458). Dr. Small opined Plaintiff had a medically determinable impairment of paranoid schizophrenia (Tr. 460). Dr. Small opined Plaintiff did not experience repeated episodes of decompensation of extended duration, had mild limitations in activities of daily living, and mild limitations in maintaining social functioning. (Tr. 468). Dr. Small opined Plaintiff had moderate limitations in maintaining concentration, persistence, or pace. (Tr. 468). Dr. Small opined Plaintiff was not significantly limited in the ability to: (1) remember locations and work-like procedures; (2) understand, remember and carry out very short and simple instructions; (3) understand, remember, and carry out detailed instructions; (4) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (5) sustain an ordinary routine without special supervision; (6) work in coordination with or proximity to others without being distracted by them; make simple work-related decisions; (7) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (8) interact appropriately with the general public; (9) ask simple questions or request assistance; (10) accept instructions and respond appropriately to criticism from supervisors; (11) get along with coworkers or peers without distracted them or exhibiting behavioral extremes; (12) maintain socially appropriate behavior and to adhere to basic standard of neatness and cleanliness; (13) respond appropriately to changes in the work setting; (14) be aware of normal hazards and take appropriate precautions; (15) travel in unfamiliar places or use public transportation; and, (16) set realistic goals or make plans independently of others. (Tr. 471-72). Dr. Small opined Plaintiff experienced moderate limitations in the ability to maintain attention and concentration for extended periods and respond appropriately to changes in the work setting. (Tr. 471-72).
In support for his findings Dr. Small wrote Plaintiff:
drove himself to the [Consultative Evaluation], was distant and detached; pleasant but confused; was not having significant symptoms, and had been hospitalized twice in the past year and a half. He was taking antipsychotic and antidepressant medication. He made completed meals, did cleaning and laundry, and interacted primarily by phone. Currently he remains in treatment, has diagnosis of schizophrenia, had a fairly normal mental status, is stabilized on benzotropine. He has not had hallucinations for past three years nor paranoid ideation. No issues with anxiety. The claimant alleges disability due to Schizophrenia and major deep depression. The medical evidence establishes a medically determinable impairment of Paranoid Schizophrenia. He is 31 years old. The claimant can make simple decisions. He can sustain an ordinary routine without special supervision. There are no restrictions in his abilities in regards to understanding and memory and social interaction. Based on the evidence of record, the claimant's statements are
found to be partially credible. The claimant is able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from his impairment. Medical improvement has occurred.
(Tr. 473).
4. Treating Physician Opinion Dated May 24, 2015: Jeffery Hermann, M.D.
In May 2015 Dr. Hermann completed a form indicating based on a psychiatric evaluation, Plaintiff was temporarily disabled from May 27, 2015 to May 27, 2017, due to a condition which precludes gainful employment. (Tr. 491). In an additional form from May 2015 Dr. Herman opined Plaintiff's ability to understand, remember, and carry out instructions were not affected by his impairments. (Tr. 494). Dr. Herman opined Plaintiff experienced marked limitations in the ability to interact appropriately with the public, co-workers, and supervisors and respond appropriately to usual work situations and to changes in a routine work situation. (Tr. 495). In support for the findings Dr. Herman explained a concern about paranoid ideation, fearful of being harmed by others affecting interpersonal relationships, social interactions, history of psychosis and paranoid ideation. (Tr. 495).
5. State Agency Non-Examining Addendum Opinion, Dated July 20, 2016: Henry Weeks, Ph.D.
In July 2015, Dr. Weeks wrote the following opinion:
I have reviewed all the evidence in file and the assessment of 02/17/15 (Dr. Small's opinion (Tr. 458-73)) is affirmed as written. The Recently added public welfare form is not supported by the [treatment] notes indicating how well [Plaintiff] is functioning. Therefore, the report from J. Herman carries little weight.
(Tr. 492).
6. Treating Physician Opinion dated July 28, 2017: Jeff Hermann, MD
In July 2017 Dr. Hermann opined Plaintiff had no limitations in the ability to understand, remember, and carry out instructions. (Tr. 617). Dr. Hermann opined Plaintiff had a moderate limitation in the ability to interact appropriately with the public and respond appropriately to usual work situations and changes in routine work setting. (Tr. 618). Dr. Hermann opined Plaintiff experienced marked limitations in the ability to interact appropriately with supervisors and coworkers. (Tr. 618). In support of the opined limitations Dr. Hermann explained Plaintiff "presents with auditory hallucinations and periodic issues with paranoid ideation," experiences "problems with attention and distractibility related to hallucinations," and "wears headphones – listens to music in attempt to drown out voices." (Tr. 618). Dr. Hermann opined that these limitations were first present in May 2010. (Tr. 618).
7. Pennsylvania Psychiatric Institute Discharge Report Dated September 21, 2017: Katherine Dalke, M.D.
Dr. Dalke summarized Plaintiff's fifteen-day hospital stay following a suicide attempt by driving his car into rocks during a period of "decompensated psychosis and stress." (Tr. 621). Dr. Dalke stated:
On admission, the patient was severely disorganized and unable to provide a coherent history. Over time, and with collateral from his wife, it became apparent that he had undergone multiple medication changes prior to admission -- he had been on Haldol and Cogentin, but experienced breakthrough AH, and
so was switched to Seroquel. He then became depressed and anergic, so was switched to Abilify and Cymbalta. At this point, he began to decompensate, and became suicidal and psychotic.
The patient was treated with psychopharmacology, group and supportive therapy, and structured milieu. Specifically, he was initially given 5 mg of Haldol with 1 mg of Cogentin, but had a severe dystonic reaction, requiring an additional 3 mg of Cogentin. He was then transitioned to Zyprexa Zydis, titrated up to 20 mg at night.... the patient tolerated these medication changes well and without adverse effect.
....
The hospital course was significant for the patient reporting that he'd had inappropriate sexual contact with his stepson. A report was filed with CPS by one of our assessment counselors. His wife was aware of this statement and had no concerns for the safety of their family; she believed that his statement was a symptom of psychosis. The Patient later reported the same. His wife noted that he tends to decompensate around this time of year because his disability case is re-challenged, which leads to financial stress and a reminds of his loss of function.
The patient responded well to interventions. The patient demonstrated improvement in his thought and behavior organization as well as his attention to self-care. He attended groups and found them very helpful. He remained in good behavioral control throughout admission and was cooperative with care. On the day of discharge, he denied auditory and visual hallucinations, delusions, suicidal and homicidal ideation, and contracted firmly for safety.
(Tr. 621-22). Mental examination revealed Plaintiff's mood was normal, thought process was linear, and he spoke with a normal rate and volume with some spontaneous elaboration. (Tr. 622). Dr. Dalke noted Plaintiff demonstrated intact associations, normal thought content, no distortions, and intact attention and concentration. (Tr. 623). Dr. Dalke noted Plaintiff's insight was fair and judgment was good. (Tr. 623).
8. PA Psychiatric Institute Partial Hospitalization Program: Evidence Submitted after the December 2017 ALJ Decision
In a record dated October 3, 2017, Dr. Raymond Emmanuel, M.D., noted a history including a voluntary hospitalization from September 7 to September 21 following a motor vehicle suicide attempt. Dr. Raymond noted it was apparent that leading up to the recent decompensation psychosis and inpatient admission, Plaintiff underwent multiple medication changes. (Tr. 33). Plaintiff had been on Haldol and Cogentin but experienced breakthrough auditory hallucinations and was switched to Seroquel. (Tr. 33). He then became depressed and anergic and was switched to Abilify and Cymbalta and after this change he began to decompensate. (Tr. 33). During the recent hospital course, Plaintiff was initially given 5 mg of Haldol with 1 mg of Cogentin, but had a severe dystonic reaction, requiring an additional 3 mg of Cogentin. (Tr. 33). During this recent hospital stay Plaintiff reported to have engaged in inappropriate sexual contact with his stepson. (Tr. 33). Plaintiff's wife believed the report was a symptom of psychosis and Plaintiff later reported the same. (Tr. 33). Since discharge from inpatient treatment, Plaintiff reported doing well, and denied currently experiencing hallucinations or suicidal ideation. (Tr. 33). Dr. Emmanuel observed Plaintiff was alert and oriented to person, place, and time, appeared nervous/anxious. (Tr. 33-34). Dr. Emmanuel noted Plaintiff had multiple previous psychiatric admissions, the last two admissions at PPI was September 2017 and in 2012 and admitted in Roxbury in 2011. (Tr. 34). During his most recent psychiatric admission, Plaintiff reported three past suicide attempts and suicidal ideation five to ten times per week. (Tr. 34). His self-injurious behavior in 2011 included stabbing himself, overdosing on sleeping pills, and driving into a rock with lethal intentions. (Tr. 34). It is also noted that Plaintiff is allergic to the antipsychotic medication Haldol. (Tr. 34). For the examination Dr. Emmanuel noted Plaintiff was calm, cooperative, with normal speech and mood and with a linear, logical thought process. (Tr. 34). Dr. Emmanuel noted Plaintiff's language was intact but impaired, he was oriented to person, place, time and situation, with intact attention, concentration, knowledge, and short-term memory. (Tr. 34). Dr. Emmanuel noted Plaintiff's judgement was good, and insight fair. (Tr. 34). Dr. Emmanuel certified that Plaintiff's symptoms continue to meet criteria for the partial hospitalization program ("PHP"). (Tr. 35).
On October 16, 2017, during a medication management report, Dr. Emmanuel noted Plaintiff has been participating in the PHP, actively participating in group and individual therapies, and consistently adhering to his medication regimen. (Tr. 37). The examination notes were similar to the October 3 observations. (Compare Tr. 34-35 with Tr. 38-39). Dr. Emmanuel certified that Plaintiff's symptoms continue to meet criteria for the partial hospitalization program ("PHP"). (Tr. 39). Similar to the previous examinations, (Tr. 34-39), on October 25, 2017, during a medication management report, Dr. Emmanuel noted Plaintiff has been participating in the PHP, actively participating in group and individual therapies, and consistently adhering to his medication regimen. (Tr. 40). Plaintiff reported doing well with a stable euthymic mood. (Tr. 40). The examination notes were similar to the previous examinations. (Compare Tr. 34-39 with Tr. 40-42). Dr. Emmanuel certified that Plaintiff's symptoms continue to meet criteria for the PHP. (Tr. 42). In an October 27 discharge report the examination notes were similar to the previous examinations. (Compare Tr. 34-42 with Tr. 43). Dr. Emmanuel noted Plaintiff regularly and actively participated in individual and group therapy and reported that he significantly benefited from PHP and Plaintiff continues taking medications (5 mg Amlodipine and 20 mg Olanzapine ), without any adverse side effects. (Tr. 43). Plaintiff's mood was stable, though process linear and logical, he was oriented x4, and still possessed good judgement and fair insight. (Tr. 43).
V. ANALYSIS
A. Longitudinal Record and Temporary Remission Requirements for Continuing Disability Review Pursuant to Sections 404.1594 and 416.994
Plaintiff argues that while determining a Residual Functional Capacity "may be somewhat more difficult to assess in cases with periodic flareups of significant symptoms such as in the present case, ... Plaintiff clearly has had episodes of breakdowns with psychotic behavior leading to hospitalizations." Pl. Br. at 13. Plaintiff continues the RFC "does not adequately account for his limitations during those flare-ups" and "Dr. Hermann's marked limitations do reflect the Plaintiff's limitations during those flare-ups." Pl. Br. at 13. Plaintiff asserts while he "might be able to function, although with difficulty, on a day-to-day basis in some work situations, Dr. Hermann's opinion shows that he will eventually break down and have significant problems interacting appropriately with others, especially supervisors, and in responding appropriately to usual work stressors in any work setting." Pl. Br. at 13-14. The undersigned agrees.
1. Omission of Analysis of Medical Record Relevant to the Recent Favorable Disability Decision
The ALJ's decision is devoid of any discussion of medical evidence leading up to the time of the most recent favorable disability decision dated December 21, 2011. (Tr. 75-82). Sections 404.1594(b)(7), 416.994(b)(7) instruct:
For purposes of determining whether medical improvement has occurred, we will compare the current medical severity of that impairment(s) which was present at the time of the most recent favorable medical decision that [the claimant was] disabled or continued to be disabled to the medical severity of that impairment(s) at that time. If medical improvement has occurred, we will compare [the claimant's] current functional capacity to do basic work activities (i.e., [the claimant's] residual functional capacity) based on this previously existing impairment(s) with [the claimant's] prior residual functional capacity in order to determine whether the medical improvement is related to [the claimant's] ability to do work. The most recent favorable medical decision is the latest decision involving a consideration of the medical evidence and the issue of whether [the claimant was] disabled or continued to be disabled which became final.
20 C.F.R. §§ 404.1594(b)(7), 416.994(b)(7). The ALJ's failure to consider the medical evidence "longitudinally" was contrary to § 12.00(D)(2) and resulted in an overemphasis on current records and failure to consider whether alleviation of symptoms for Plaintiff's chronic impairment resulted from Plaintiff's supports and structured life. See Nowling v. Colvin, 813 F.3d 1110, 1120 (8th Cir. 2016) (citing subsections 12.00 D, E, and F of 20 C.F.R. § Pt. 404, Subpt. P, App. 1, which have the same wording in relevant version). Although the ALJ gives great weight to Dr. Small's February 2015 opinion concluding medical improvement has occurred, Dr. Small's opinion does not reference any of the records leading up to the December 2011 disability decision and Dr. Small's explanation relies upon current medical records. (Tr. 473). "[R]ecords from a previous claim are relevant to evaluate the longitudinal effectiveness of treatment, or whether a period of improvement may, in fact, demonstrate a momentary remission." McKean v. Colvin, 150 F. Supp. 3d 406, 414 (M.D. Pa. 2015) (citing O'Donnell v. Astrue, 2011 WL 3444194, at *7 at n. 7 (W.D. Pa. Aug. 8, 2011)) ; see also Nowling v. Colvin, 813 F.3d 1110, 1120 (8th Cir. 2016) ; Gray v. Comm'r of Soc. Sec., No. 18-CV-184-FPG, 2019 WL 1499141, at *3–4 (W.D.N.Y. Apr. 5, 2019). The ALJ's failure to address medical opinions previously considered for the December 2011 opinion is reversible error. See McKean v. Colvin, 150 F. Supp. 3d 406, 414–15 (M.D. Pa. 2015) ; see also Gray v. Comm'r of Soc. Sec., No. 18-CV-184-FPG, 2019 WL 1499141, at *3–4 (W.D.N.Y. Apr. 5, 2019). While an ALJ is free to reject a medical source's conclusions, Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2012), the ALJ must indicate why evidence was rejected, so that a reviewing court can determine whether "significant probative evidence was not credited or simply ignored." See Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) ; Mistick v. Colvin, No. 12-cv-1031, 2013 WL 5288261 (W.D. Pa. Sept. 18, 2013). The undersigned finds persuasive Gray v. Comm'r of Soc. Sec. in which the Western District of New York concluded:
In contravention of the SSA's regulations, the ALJ did not compare the current medical severity of Gray's impairments to the medical severity of his
impairments when he was disabled from March 15, 2013 through August 31, 2015. See 20 C.F.R. §§ 404.1594(b)(7), 416.994(b)(7) (effective Aug. 24, 2012 to Mar. 26, 2017). The ALJ only vaguely notes that some of Gray's symptoms "stabilized" without making any comparison to Gray's prior condition. Thus, the Court cannot meaningfully review his conclusion.
...
The ALJ afforded only "little weight" to Dr. Bennett's opinion because he found it unsupported by Dr. Bennett's treatment notes showing intact memory, fair attention and concentration, clear thought processes, and normal mood. Tr. 16. According to the ALJ, these notes demonstrated that Gray's "condition had stabilized such that his functioning was much improved and notably better." Tr. 18.
This reasoning is insufficient because the ALJ did not consider any of the regulatory factors for evaluating a treating physician's opinion. Moreover, "[t]he ALJ's own interpretation of raw medical data does not justify rejecting a treating physician's opinion," Jackson v. Comm'r of Soc. Sec., No. 17-CV-6252-FPG, 2018 WL 4346593, at *7 (W.D.N.Y. Sept. 12, 2018) (citation omitted), and he "cannot arbitrarily substitute his own judgment for competent medical opinion." [ Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (citations omitted) ]. In fact, the findings that the ALJ relied on to reject Dr. Bennett's opinion—intact memory, fair attention and concentration, clear thought processes, and normal mood—are the same findings that Dr. Bennett cited to support his restrictive opinion. Tr. 653.
Gray v. Comm'r of Soc. Sec., No. 18-CV-184-FPG, 2019 WL 1499141, at *3–4 (W.D.N.Y. Apr. 5, 2019) (some citations omitted). Additionally, Plaintiff has had a history of denying symptoms and has indicated no problems exist even as a medical expert observes Plaintiff struggling. (Tr. 421). In January 2011, after Plaintiff stabbed himself in the stomach, he refused psychiatric hospitalization stating he was not "crazy" as Dr. Jahanara Zahid documented "strange" behavior. (Tr. 421). In the June 2011 Consultative Evaluation, Dr. Laguna noted that although Plaintiff responded, "I'm in a good mood," Dr. Laguna observed he appeared anxious, clearly had difficulty concentrating, and appeared not to comprehend Dr. Laguna's explanation regarding his demeanor. (Tr. 444). Dr. Laguna noted that although Plaintiff reported being asymptomatic, "his presentation is indicative of apathy, detachment and difficulty concentrating" and Dr. Laguna found the "disconnect between [Plaintiff's] clinical presentation and his reported affect interesting." (Tr. 444). In fulfilling the obligation of addressing the longitudinal record, the ALJ failed to address Plaintiff's history of minimizing the severity of his symptoms. See Wark v. Colvin, 164 F. Supp. 3d 635, 646 and n.4 (M.D. Pa. 2015) (listing cases involving medical records wherein a Plaintiff's report of symptoms is less severe than that reflected by medical professionals); see also Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001) (finding "the Commissioner's decision ‘must take into account evidence indicating that the claimant's true functional ability may be substantially less than the claimant asserts or wishes.’ ")
The need to discuss medical opinions supporting the December 2011 decision is important to account for the longitudinal record and assess whether the current period under review qualifies as a temporary remission or indicates relapse as foreseeable with re-employment. See 20 C.F.R. §§ 404.1594(c)(3)(iv), 416.994(c)(3)(iv) ; Garrison v. Colvin, 759 F.3d 995, 1017–18 (9th Cir. 2014) ; Carlson v. Shalala, 841 F. Supp. 1031, 1037–39 (D. Nev. 1993) (quoting Lebus v. Harris, 526 F.Supp. 56, 59–61 (N.D. Cal. 1981) ) ("the relevant inquiry is whether a claimant can engage in any substantial gainful activity during the symptom-free intervals, given the likelihood, frequency, and severity of relapses in his mental illness"). Based on the foregoing, the undersigned recommends remand.
2. Consideration of Temporary Remission
For CDR improvement cases involving mental illness, an ALJ should consider whether the impairment is subject to a temporary remission and address the foreseeability of future disabling deterioration that would contradict a finding of a claimant's ability to sustain gainful employment. See 20 C.F.R. §§ 404.1594(c)(3)(iv), 416.994(c)(3)(iv) ; POMS DI 28010.115A. The ALJ erred for failing to consider whether the noted improvement in Plaintiff's impairment qualified as a temporary remission. See 20 C.F.R. §§ 404.1594(c)(3)(iv), 416.994(c)(3)(iv) ; POMS DI 28010.115A. Section (c)(3)(iv) explains:
In some cases the evidence shows that an individual's impairments are subject to temporary remission. In assessing whether medical improvement has occurred in persons with this type of impairment, we will be careful to consider the longitudinal history of the impairments, including the occurrence of prior remission, and prospects for future worsenings. Improvement in such impairments that is only temporary will not warrant a finding of medical improvement.
20 C.F.R. §§ 404.1594(c)(3)(iv), 416.994(c)(3)(iv) (emphasis added). The Third Circuit has yet to address what length of time qualifies as a "temporary remission" pursuant to sections 404.1594(c)(3)(iv), 416.994(c)(3)(iv). The District Court of South Dakota in Darnell v. Berryhill discusses at length the relevant agency guidance and cases from different jurisdictions addressing temporary remissions. Darnell v. Berryhill, No. 5:17-CV-05002-VLD, 2018 WL 1306281, at *28–30 (D.S.D. Mar. 13, 2018). The Court in Darnell v. Berryhill explains:
Although the regulation has been amended over the years, the language for the temporary remission requirement of the regulation has remained unchanged since its addition reflected in December 1985 regulatory history. Compare Supplemental Security Income; Disability and Blindness Determinations, 50 FR 50118-01 with 20 C.F.R. §§ 404.1594(c)(3)(iv), 416.994(c)(3)(iv) (effective March 27, 2017).
The Commissioner does not define "temporary" in its regulation, but does provide further guidance in its Program Operations Manual System (POMS). The Commissioner states "[s]ome impairments are subject to temporary remissions, which can give the appearance of medical improvement (MI) when in fact there has been none. These types of impairments can appear to be in remission when, in fact, the impairments are only stabilized." POMS DI 28010.115A. In considering whether a temporary remission or medical improvement has occurred, the Commissioner directs ALJs to consider the longitudinal history of the impairment, -all the available evidence, and the medical literature about the disease. Id. at B1b. The Commissioner lists several impairments which are especially subject to temporary remission; mental impairments are among those listed. Id. at B2. As to the question "how long is temporary," the Commissioner states "temporary" must be viewed in the light of the longitudinal history of the impairment and the period
of remission must have been long enough to have a significant impact on the individual's ability to work. Id. at B3.
Darnell v. Berryhill, No. 5:17-CV-05002-VLD, 2018 WL 1306281, at *28. In reviewing cases across the nation, the Court noted cases remanding for consideration of temporary remissions spanning a couple months to a couple years. See Darnell v. Berryhill, No. 5:17-CV-05002-VLD, 2018 WL 1306281, at *28-30 (collecting cases). The District Court of Nevada remanded in Carlson v. Shalala, finding the ALJ needed to address whether a claimant's alleviation from the severity of schizophrenic symptoms from June 1983 to January 1986 qualified as a temporary remission. See Carlson v. Shalala, 841 F. Supp. 1031, 1037–39 (D. Nev. 1993). In this case the ALJ determined medical improvement commenced April 30, 2015, and noted Plaintiff's September 2017 psychiatric hospitalization. (Tr. 18-21). Assuming for the sake of this discussion, Plaintiff experienced a period of improved symptoms of approximately two and a half years, such may qualify as a temporary remission, however, remand is recommended for the Commissioner to consider this issue and "prospects for future worsenings" in the first instance. 20 C.F.R. §§ 404.1594(c)(3)(iv), 416.994(c)(3)(iv) ; see Carlson v. Shalala, 841 F. Supp. 1031, 1037–39 (D. Nev. 1993) (concluding the ALJ also needed to address the claimant's ability to successfully sustain employment).
The ALJ's emphasis of some facts to demonstrate improvement and the omission of contradictory facts obscure the overall longitudinal picture of Plaintiff's impairment. See Garrison v. Colvin, 759 F.3d 995, 1017–18 (9th Cir. 2014) ; Nowling v. Colvin, 813 F.3d 1110, 1123 (8th Cir. 2016) (finding error where the ALJ's emphasis on isolated records failed to acknowledge the claimant's symptoms waxed and waned throughout her substantial period of treatment); Hutsell v. Massanari, 259 F.3d 707, 711-14 (8th Cir. 2001) ; see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) ("The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons ..., and is not held to a minimum standard of performance, as she would be by an employer. The failure to recognize these differences is a recurrent, and deplorable, feature of opinions by administrative law judges in social security disability cases."). For example, the ALJ highlights Plaintiff "can care for his son, read, and prepare simple meals," and "watch television, drive, and manage money" (Tr. 18, 21) to support a finding that Plaintiff possesses a moderate limitation in concentrating, persisting, or maintaining pace, and a moderate limitation in understanding, remembering, or applying information, however, the ALJ decision omits Plaintiff's report of "inappropriate sexual contact" with a step-son resulting in a referral to Child Protective Services and failed to mention Plaintiff's suicide attempts while driving. (Tr. 50, 54, 621). See Gleason v. Colvin, 152 F. Supp. 3d 364, 381 (M.D. Pa. 2015) (finding error where ALJ cited to a claimant's custody of a child to support a finding of ability to work, but not discussing the probative significance and reasons underlying the claimant's subsequent loss of custody); Gonzales v. Colvin, 191 F.Supp.3d 401 (M.D. Pa. 2015) (adopting recommendation ECF No. 24) ("The ability to care for children, alone, does not inherently indicate that a claimant possesses the ability to perform on a regular and continuing basis in a work-setting"). The ALJ notes Plaintiff has been treated with Haldol and highlights a record stating Plaintiff continued to do well on medication (Tr. 21), however, did not address a severe reaction to Haldol in September 2017, and his changes in medications (621). In support of finding Plaintiff had no limitation interacting with others, the ALJ cited to where Plaintiff reported he got along with authority figures, visited family weekly, shopped and treatment notes that indicated Plaintiff was cooperative and well-groomed with normal speech, logical and goal directed thought processes, fair insight, and fair judgment. (Tr. 18). However, there is no mention regarding reports of Plaintiff's behavior at his past job with notes indicating he pushed a co-worker into a pool in 2011, his failed work attempt as a janitor, or Dr. Hermann's July 2017 opinion stating Plaintiff "wears headphones – listens to music in attempt to drown out voices." (Tr. 57-59, 335, 398, 406, 618). The Ninth Circuit in Garrison v. Colvin explained:
Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) ("[The treating physician's] statements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace."). Reports of "improvement" in the context of mental health issues must be interpreted with an understanding of the patient's overall well-being and the nature of her symptoms. See [ Ryan v. Comm'r of Soc. Sec., 528 F. 3d 1194, 1200-01 (9th Cir. 2008) ] ("Nor are the references in [a doctor's] notes that Ryan's anxiety and depression were ‘improving’ sufficient to undermine the repeated diagnosis of those conditions, or [another doctor's] more detailed report."). They must also be interpreted with an awareness that improved functioning while being treated and while limiting environmental stressors does not always mean that a claimant can function effectively in a workplace. See, e.g., [ Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) ] ("We also believe that the Commissioner erroneously relied too heavily on indications in the medical record that Hutsell was ‘doing well,’ because doing well for the purposes of a treatment program has no necessary relation to a claimant's ability to work or to her work-related functional capacity.").
Garrison v. Colvin, 759 F.3d 995, 1017–18 (9th Cir. 2014) (emphasis added). In this instance, the ALJ concluding Plaintiff has no limitation interacting with others based on records noting Plaintiff is "cooperative and well-groomed with normal speech, logical and goal directed thought processes, fair insight, and fair judgment," is out of the context of Plaintiff's interactions with people in stressful situations, interactions with strangers, and measures he and his family have taken to provide support, structure and minimize stressors, and amounts to error. See Nowling v. Colvin, 813 F.3d 1110, 1123 (8th Cir. 2016) (finding error where the ALJ failed to address the effect of the claimant's structured living environment had in stabilizing the impairment symptoms); Hutsell v. Massanari, 259 F.3d 707, 711-14 (finding error where the ALJ failed to address the claimant's structured living environment in alleviating symptoms if the schizoaffective disorder ). "For a proper temporary remission analysis for mental health impairments, it is essential to look at the totality of the evidence, consider the extent that a claimant's structured living environment and routines maintain a claimant's stability and whether the removal of these safeguards and re-entering the workforce would compel a foreseeable worsening." See Darnell v. Berryhill, No. 5:17-CV-05002-VLD, 2018 WL 1306281, at *28–30 (finding one year of temporary remission).
The Court finds persuasive the Eighth Circuit analysis in Nowling v. Colvin as it addresses the ALJ's responsibility to view Plaintiff's impairments in the manner required by the regulations governing Mental Disorders in Subpt. P, App. 1 § 12.00. Nowling v. Colvin, 813 F.3d 1110, 1120 (8th Cir. 2016). The Court in Nowling observed the ALJ's conclusory dismissal of testimony from the plaintiff and a member of his household and in doing so failed to account for factors in subsection 12.00(D)(1). Nowling v. Colvin, 813 F.3d 1110, 1120 (8th Cir. 2016). Subsection 12.00(D)(1) instructs factfinders to consider:
Psychosocial supports, structured settings , and living arrangements, including assistance from [the claimant's] family or others, may help [the claimant] by reducing the demands made on [the claimant]. In addition, treatment [the claimant] receive[s] may reduce ... symptoms and signs and possibly improve ... functioning, or may have side effects that limit ... functioning. Therefore, when we evaluate the effects of [the claimant's] mental disorder and rate the limitation of [the claimant's] areas of mental functioning, we will consider the kind and extent of supports [the claimant] receive[s], the characteristics of any structured setting in which [the claimant] spend[s] ... time, and the effects of any treatment. This evidence may come from reports about [the claimant's] functioning from [the claimant] or third parties who are familiar with [the claimant], and other third-party statements or information. Following are some examples of the supports [the claimant] may receive:
a. [the claimant] receive[s] help from family members or other people who monitor ... daily activities and help [the claimant] to function. For example, family members administer ... medications, remind [the claimant] to eat, shop for [the claimant] and pay ... bills, or change their work hours so [the claimant is] never home alone.
....
g. [the claimant] live[s] alone and do[es] not receive any psychosocial support(s); however, [the claimant has] created a highly structured environment by eliminating all but minimally necessary contact with the world outside [the claimant's] living space.
Under subsection 12.00(C)(6)(b), "Supportive situations" instructs for an ALJ to consider whether a claimant is completing tasks in settings that are "less demanding or more supportive than typical work settings' and such do "not necessarily demonstrate [a claimant's] ability to complete tasks in the context of regular employment during a normal workday or work week." 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
20 C.F.R. § Pt. 404, Subpt. P, App. 1 (version effective from August 22, 2017 to March 13, 2018 and has the same wording as previous versions cited in older cases). The ALJ's conclusory dismissal of testimonial evidence and lack of development of the longitudinal record contributes to errors cited by the Plaintiff arguing the ALJ omitted any limitation for working with other people "[d]espite all of this opinion evidence on the Plaintiff's social functioning." See Pl. Br. at 13; Nowling v. Colvin, 813 F.3d 1110, 1120 (8th Cir. 2016) ; Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016) (reversing where the ALJ cherry-picked records showing improvement and failing to consider that evidence "in the broader context of [the claimant's] impairment"). An ALJ cannot rely only on the evidence that supports his or her conclusion, but also must explicitly weigh all relevant, probative, and available evidence; and provide some explanation for a rejection of probative evidence which would suggest a contrary disposition. See Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) ; Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). Based on the foregoing, the undersigned recommends remand.
B. Sentence Six
Plaintiff argues records submitted from the Pennsylvania Psychiatric Institute from Dr. Emanuel dated October 3, 2017 through October 27, 2017 (Tr. 32-44) warrants remand. Pl. Br. at 16-17. The Appeals Council found that this evidence did not show a reasonable probability that it would change the outcome of the decision and therefore did not exhibit it. (Tr. 1-7).
When the Appeals Council denies review, evidence that was not before the ALJ may only be used to determine whether it provides a basis for remand under sentence six of section 405(g), 42 U.S.C. ("Sentence Six"). See Szubak v. Secretary of Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Sentence Six requires a remand when evidence is "new" and "material," but only if the claimant demonstrated "good cause" for not having incorporated the evidence into the administrative record. Id. The Appeals Council requires "additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. § 404.970(a)(5) ; 20 C.F.R. § 416.1470(a)(5) (effective January 17, 2017); Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.2001).
The records summarizing Plaintiff's partial hospitalization program from October 3, 2017, to October 27, 2017, is new, material, and relates to the period leading to the hearing decision. See 20 C.F.R. § 404.970(a)(5) ; 20 C.F.R. § 416.1470(a)(5) (effective January 17, 2017); Matthews v. Apfel, 239 F.3d at 592. There is "a reasonable probability that the additional evidence would change the outcome of the decision." See 20 C.F.R. § 404.970(a)(5) ; 20 C.F.R. § 416.1470(a)(5) (effective January 17, 2017); Matthews v. Apfel, 239 F.3d at 592. The new evidence provided more detail to the duration of the recent period of decompensation, discusses Plaintiff's medication history with a newly acquired allergic reaction to Haldol and provides greater context for "normal" symptomology while still requiring intensive psychiatric care. (Tr. 44). Regarding the period of decompensation starting in September 2017, in the December 2017 Decision the ALJ summarized:
In September 2017, the claimant underwent inpatient psychiatric treatment. This hospitalization was after the claimant changed his medications. Treatment notes indicate the claimant responded well, found group therapy "very helpful," remained in control of his behavior, and was cooperative with care. At discharge, the claimant was calm and cooperative, with normal speech, intact language, normal mood, linear thought process, intact associations, normal thought content, intact memory, intact concentration, intact attention, fair insight, and good judgment.
(Tr. 21). This is the only reference the ALJ made to this period of psychiatric hospitalization. The ALJ does not refer to it as an episode of decompensation. The new records highlight Plaintiff's assertion that, notwithstanding the ALJ's observations that Plaintiff found group therapy helpful, and Plaintiff maintained a calm demeanor, intact speech, linear thought process, fair insight, and good judgment, Dr. Emmanuel still opined Plaintiff needed admission to a partial hospitalization program. (Tr. 32-44). Additionally, the new record demonstrates Dr. Emmanuel's opinion that Plaintiff acquired an allergic reaction to Haldol, which was the primary medication that previously maintained Plaintiff's stability. (Tr. 34). The adverse reaction to Haldol is documented during the September 2017 hospitalization and described as a "severe dystonic reaction." (Tr. 621). In addition to the above enumerated reasons for remand, the undersigned recommends remand for the ALJ to consider the new and material evidence pertaining to Plaintiff's September 2017 period of decompensation. 20 C.F.R. § 404.970(a)(5) ; 20 C.F.R. § 416.1470(a)(5) (effective January 17, 2017); Matthews v. Apfel, 239 F.3d at 592.
"a state of abnormal tension or muscle tone, similar to dystonia, produced as a side effect of certain antipsychotic medication ...." Stedmans Medical Dictionary 761090.
C. Other Allegations of Error
Plaintiff's additional claims of error may be remedied through the case's treatment on remand. Thus, the Court declines to address those claims. A remand may produce different results on these claims, making discussion of them moot. Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. 2016). See also Steininger v. Barnhart, 2005 WL 2077375, at *4 (E.D. Pa. Aug. 24, 2005) (declining to address plaintiff's other arguments for remand, "as the ALJ's findings may be revised in any decision issued following the new hearing"); LaSalle v. Comm'r of Soc. Sec., 2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011) ; Bruce v. Berryhill, 294 F. Supp. 3d 346, 364 (E.D. Pa. 2018).
VI. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.
VII. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation . Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or
her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.