Opinion
Civil Action 4:20-CV-1970
02-16-2022
ERIC DAVID BAIR, Plaintiff v. KILOLO KIJAKAZI, [1] Defendant
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge.
I. INTRODUCTION
Eric David Bair (“Plaintiff”), an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his 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, I find the Commissioner's final decision is not supported by substantial evidence. Accordingly, I recommend that the Commissioner's final decision be VACATED, and this case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g).
II. BACKGROUND & PROCEDURAL HISTORY
On May 24, 2018, Plaintiff protectively filed an application for supplemental security income under Title XVI of the Social Security Act. (Admin. Tr. 12). In this application, Plaintiff alleged he became disabled as of December 24, 2009, when he was 34 years old, due to the following conditions: head injury, brain atrophy, degenerative disc disease, cervicalgia, depression, fibromyalgia, and headaches. (Admin. Tr. 141). Plaintiff alleges that the combination of these conditions affects his ability to lift, squat, bend, stand, reach, walk, sit kneel, talk, climb stairs, remember things, complete tasks, concentrate, use his hands and get along with others. (Admin. Tr. 246). Plaintiff completed one year of college. (Admin. Tr. 225). Before the onset of his impairments, Plaintiff worked three different jobs in manufacturing as a laborer, molder, and set up tech. (Admin. Tr. 225). He also worked as a “counter person” at a minimarket. Id.
This is not Plaintiff's first application for benefits. In August 2013, Plaintiff filed applications for benefits under Titles II and XVI of the Social Security Act alleging that he became disabled on December 31, 2009 as a result of the following impairments: head injury, compression fractures of C1 and L1, depression, fibromyalgia, walking/gait disturbance, fatigue, loss of motor skills and fine motor skills on his right side, cognitive difficulties, heat sensitivity, ligament damage in his left knee, herniated discs, migraines, sciatica, and arthritis. These applications were denied at all levels of administrative review, and Plaintiff appealed to this Court for judicial review. On October 10, 2018, I issued a Report & Recommendation, recommending that the Commissioner's final decision denying Plaintiff's 2013 applications be affirmed. Bair v. Colvin, No. 3:16-CV-1331 (M.D. Pa.), ECF No. 16. On October 23, 2018, Plaintiff filed objections to the Report & Recommendation. The Report & Recommendation, and Plaintiff's objections to it, are pending before Judge Mariani.
Plaintiff's alleged onset date in this case covers the same period as the alleged onset date alleged in his August 2013 applications (still pending before this Court in Bair v. Colvin, No. 3:16-CV-1331 (M.D. Pa.)). The ALJ did not address whether this overlap is relevant in her August 2019 decision.
On November 29, 2018, Plaintiff's application was denied at the initial level of administrative review. (Admin. Tr. 12). On December 12, 2018, Plaintiff requested an administrative hearing. (Admin. Tr. 168).
On July 11, 2019, Plaintiff, assisted by his counsel, appeared and testified during a hearing before Administrative Law Judge Michele Stolls (the “ALJ”). (Admin. Tr. 12). On August 5, 2019, the ALJ issued a decision denying Plaintiff's application for benefits. (Admin. Tr. 26). On September 26, 2019, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 184-87).
On September 10, 2020, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1).
On October 26, 2020, Plaintiff initiated this action by filing a Complaint. (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 relevant law and regulations. Id. As relief, Plaintiff requests that the Court award benefits, or in the alternative remand this case to the Commissioner for a new administrative hearing. Id.
On March 22, 2021, the Commissioner filed an Answer. (Doc. 12). In the Answer, the Commissioner maintains that the decision holding that Plaintiff is not entitled to disability insurance benefits was made in accordance with the law and regulations and is supported by substantial evidence. Id.. Along with her Answer, the Commissioner filed a certified transcript of the administrative record. (Doc. 13).
Plaintiff's Brief (Doc. 16) and the Commissioner's Brief (Doc. 17) have been filed. Plaintiff did not file a reply. This matter is now ripe for decision.
III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal principles governing Social Security Appeals.
A. Substantial Evidence Review - the Role of This Court
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. 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). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). 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.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).
“In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding that Plaintiff is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”) (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 . . . .”).
B. Standards Governing the ALJ's Application of The Five-Step Sequential Evaluation Process
To receive benefits under the Social Security Act by reason of disability, 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.” 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.905(a).
Throughout this Report, I cite to the version of the administrative rulings and regulations that were in effect on the date the Commissioner's final decision was issued. In this case, the ALJ's decision, which serves as the final decision of the Commissioner, was issued on August 5, 2019.
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 416.920(a). 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”). 20 C.F.R. § 416.920(a)(4).
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).” 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). 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. 20 C.F.R. § 416.945(a)(2).
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 in engaging in any of his or her past relevant work. 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. 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. 20 C.F.R. § 416.912(b)(3); Mason, 994 F.2d at 1064.
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).
IV. DISCUSSION
A. The ALJ's Decision Denying Plaintiff's Application
In her August 2019 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 between May 24, 2018 (the application date) and August 5, 2019 (the date the ALJ issued a decision). (Admin. Tr. 14).
At step two, the ALJ found that, during the relevant period, Plaintiff had the following medically determinable severe impairments: degenerative disc disease of the lumbar spine and radiculopathy with mild compression deformity; fibromyalgia; arthritis; chronic pain syndrome; migraines; occipital headaches; neuralgia; major depressive disorder; post-traumatic stress disorder; generalized anxiety disorder; personality disorder due to brain injury; schizoid personality disorder; traumatic brain encephalopathy and traumatic brain injury with frontal temporal lobe atrophy and other frontotemporal dementia; and mild neurocognitive disorder/cognitive slowing/memory deficit status post craniotomy and frontal hematoma evacuation. (Admin. Tr. 14). The ALJ also identified several medically determinable non-severe and non-medically determinable impairments. The ALJ found that the following impairments were medically determinable but non-severe during the relevant period: cholelithiasis (gall stones); gastroesophageal reflux disease; fecal incontinence; abnormal abdominal ultrasound; abnormal liver function; hepatic steatosis (fatty liver disease); hemorrhoids status post hemorrhoidectomy; right upper quadrant pain; diarrhea; transaminitis (elevated liver enzymes); hypertension; acute sinusitis; mixed hyperlipidemia; pure hyperglycemia; vasovagal syncope; history of proximal tibia fracture; history of left mandibular fracture; mild closed head fracture status post open reduction internal fixation in December 1994; neck pain with upper extremity weakness and tremor; muscle spasms of the neck; balance problems with gait disturbance; osteopenia; remote history of right hand and arm burns and blisters; sebaceous cyst; myalgia and myositis unspecified; herpes viral gengivostomatitis; pharyngotonsillitis; and history of unspecified tongue condition. (Admin. Tr. 14-16). The ALJ found that Plaintiff did not have a medically determinable substance use disorder. (Admin. Tr. 16).
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. 16).
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:
the claimant is limited to occupations that require no more than occasional postural maneuvers such as balancing, stooping, kneeling, crouching, crawling, and climbing ramps and stairs; must avoid occupations that require climbing on ladders, ropes, or scaffolds; must avoid concentrated or prolonged exposure to fumes, odors, dusts, gases, chemical irritants, environments with poor ventilation, temperature extremes, vibration, extreme dampness, and humidity; is limited to occupations which do not require exposure to hazards such as dangerous machinery and unprotected heights; must avoid exposure to occupations that present noise levels above level 3, which is moderate; is limited to occupations requiring no more than simple, routine tasks, not performed in a fast-paced production environment, involving only simple, work-related decisions, and in general, relatively few work place changes; is limited to occupations which require no more than occasional interaction with supervisors and coworkers and no interaction with members of the general public; is limited to occupations requiring low stress, defined as occasional decisionmaking required.(Admin. Tr. 18).
At step four, the ALJ found that, during the relevant period, Plaintiff could not engage in his past relevant work. (Admin. Tr. 24-25).
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. 25-26). To support her conclusion, the ALJ relied on testimony given by a vocational expert during Plaintiff's administrative hearing and cited the following three (3) representative occupations: document clerk, DOT #249.587-018; envelope addresser, DOT #209.587-010; and final assembler, DOT #713.687-018. Id.
B. Whether the ALJ Properly Evaluated Dr. Bonita's Medical Opinion That Plaintiff Was Limited to Occasional Fingering
The Commissioner's regulations define a medical opinion as “a statement from a medical source about what [a claimant] can still do despite [his or her] impairment(s) and whether [he or she has] one or more impairment-related limitations or restrictions in the following abilities:”
(i) [The] ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(ii) [The] ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) [The] ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(iv) [The] ability to adapt to environmental conditions, such as temperature extremes or fumes.20 C.F.R. § 416.913(a)(2). A “medical source” is “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State of Federal Law, or an individual who is certified by a States as a speech-language pathologist or a school psychologist and acting within the scope of practice permitted under State or Federal law. 20 C.F.R. § 416.902(d). If one medical source submits multiple medical opinions, and ALJ will articulate how he or she considered the medical opinions from that medical source in a single analysis. 20 C.F.R. § 416.920c(b)(1).
An ALJ's consideration of competing medical opinions is guided by the following factors: the extent to which the medical source's opinion is supported by relevant objective medical evidence and explanations presented by the medical source (supportability); the extent to which the medical source's opinion is consistent with the record as a whole (consistency); length of the treatment relationship between the claimant and the medical source; the frequency of examination; the purpose of the treatment relationship; the extent of the treatment relationship; the examining relationship; the specialization of the medical source and any other factors that tend to support or contradict the opinion. 20 C.F.R. § 416.920c(c).
The most important of these factors are the “supportability” of the opinion and the “consistency” of the opinion. 20 C.F.R. § 416.920c(b)(2). The ALJ will explain how he or she considered the “supportability” and “consistency” of a medical source's opinion. The ALJ may, but is not required to, explain his or her consideration of the other factors unless there are two equally persuasive medical opinions about the same issue that are not exactly the same. 20 C.F.R. § 416.920c(b)(3). Unlike prior regulations, under the current regulatory scheme, when considering medical opinions, an ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. § 416.920c(a).
1. Summary of Medical Opinions About Plaintiff's Physical Limitations
On August 14, 2012, treating physician Kathy Nace, D.O. completed a checkbox medical source statement about Plaintiff's physical impairments. Dr. Nace identified Plaintiff's current diagnoses as back pain, herniated nucleus pulposus at ¶ 5-S1 (“HNP”), compression deformity at ¶ 2, and history of compression fracture at ¶ 2 and L2. (Admin. Tr. 522-524). Dr. Nace assessed that Plaintiff could: sit for up to two hours per eight-hour workday; stand/walk for up to two hours per eight-hour workday; rarely lift and carry ten pounds, climb stairs; never twist, stoop, crouch, or climb ladders; and never use his fingers or hands. Id. Dr. Nace reported that while engaging in stand/walking, Plaintiff must use a cane, would be constantly off task due to his pain, and would be absent more than four days per month due to his impairments or treatment. Id.
The ALJ found that Dr. Nace's opinion was “not persuasive.” In doing so, she explained:
In August 2012, the claimant received a medical report from Susquehanna Community health indicating that he could rarely lift and carry less than ten pounds, stand and walk two hours, and sit two hours with more than four absences per month (Exhibit C9F). This opinion is not persuasive because it was rendered in 2012, approximately 6 years prior to the application date. In addition, it is not supported by the objective medical evidence discussed above. Finally, this opinion is
inconsistent with Plaintiff's activities of daily living in which he reported that he prepares some meals, takes short walks, helps care for his girlfriend's children, drives, goes grocery shopping, and attends his scheduled appointments (Exhibits C4E and Testimony).(Admin. Tr. 21).
On October 19, 2018, consultative examiner David Lindsay, M.D. examined Plaintiff. (Admin. Tr. 498-513). Following that examination, Dr. Lindsay wrote a narrative report and completed a check box medical source statement. Id. In his report, Dr. Lindsay reported that Plaintiff's current diagnoses were:
(1) Motor vehicle accident resulting in a closed head injury with sequelae.
(2) Balance problem requiring him to use a cane at all times.
(3) Gait disturbance, not only from his balance problem, but from his back pain and weakness in his legs.
(4) Lumbosacral spinal pain with sciatica bilaterally.
(5) Neck pain with upper extremity weakness and tremor.
(6) Memory deficit.
(7) Chronic headaches.
(8) Upper extremity tremor that affects his ability to use his hands.
(9) Hypertension.Id. In his check-box medical source statement, Dr. Lindsay assessed that Plaintiff could: occasional lift up to ten pounds; never carry; sit up to four hours at one time for up to a total of eight-hours per workday; stand less than one hour at a time and for up to a total of one hour per eight-hour workday; walk less than 30 minutes at one time, and for up to a total of one hour per eight-hour workday; occasionally reach, handle, finger, feel, and push/pull with upper extremities; occasionally use lower extremities to operate foot controls; occasionally climb ramps; and never climb ladders, climb scaffolds, balance, stoop, kneel, crouch, or crawl. Id. Dr. Lindsay also indicated that Plaintiff requires a medically-necessary cane to ambulate and cannot use his free hand to carry objects while using his cane. Id. He also assessed that Plaintiff could: never tolerate unprotected heights or moving mechanical parts; occasionally tolerate operating a motor vehicle, extreme cold, and vibrations; and frequently tolerate humidity/wetness, dust, odors, fumes, pulmonary irritants and extreme heat. Id. He also indicated Plaintiff should be limited to quiet (library) work environments due to headaches. Id.
The ALJ found that Dr. Lindsay's opinion was “not persuasive.” In doing so she explained:
David Lindsay, MD, a consultative examiner, indicated that the claimant requires a cane and could lift up to ten pounds, sit eight hours, stand one hour, and walk one hour with occasional reaching, handling, fingering, feeling pushing, and pulling, occasional operation of foot controls, occasional climbing ramps, and never climbing ladders or scaffolds, balancing, stooping, kneeling, crouching, or crawling, and quiet library noise (Exhibit C6F). This opinion is not persuasive
because it is not supported by the objective medical evidence discussed above, including the EMG findings and the absence of imaging of the cervical spine.(Admin. Tr. 22).
On November 28, 2018, state agency medical consultant Louis B. Bonita, M.D. completed an RFC assessment as part of the initial review of Plaintiff's application. (Admin. Tr. 149-154). Dr. Bonita assessed that Plaintiff could: occasionally lift and/or carry ten pounds; frequently lift and/or carry ten pounds; stand and/or walk (with normal breaks) for a total of two hours per eight-hour workday; sit (with normal breaks) for up to six hours per eight-hour workday; occasionally climb ramps, climb stairs, balance, stoop, kneel, crouch, crawl, use his hands and fingers for fine manipulation/fingering. Id. Dr. Bonita assessed that “[a] medically required hand-held assistive device [would be] necessary for ambulation, ” and that Plaintiff should avoid exposure to hazards. Id.
The ALJ found that Dr. Bonita's opinion was “partially persuasive.” In doing so the ALJ explained:
The opinion from the State agency medical consultant is partially persuasive. It is persuasive to the extent that it is supported by and consistent with the record as a whole, such as the limitation to lifting and carrying ten pounds occasionally and ten pounds frequently, standing and walking two hours total, and sitting six hours total with occasional climbing on ramps and stairs, balancing, stooping, kneeling, crouching, and crawling, as well as never climbing ladders, ropes or
scaffolds, and no exposure to hazards (Exhibit C3A). These portions of the opinion are persuasive because they are supported by the clinical signs and findings including radiology reports of the lumbar spine in October 2018 showing no fracture, dislocation, or compression deformity of the lumbar spine (Exhibit C6F). This opinion is also more consistent with the record as a whole including the claimant's medical treatment history and the effectiveness of treatment in which progress notes from January 2018 indicate that the claimant acknowledged 80% pain relief with nerve blocks (Exhibit C14F). However, the limitation to occasional fingering bilaterally is not supported objectively, including the EMG. Rather, it appears to be based upon the one-time self-reported snapshot of the consultative examination and mentions of the claimant's subjective complaints dropping things.(Admin. Tr. 22).
On May 5, 2019, treating physician Mona Chang, M.D. completed a one-page check-box medical source statement about Plaintiff's physical limitations. (Admin. Tr. 611). In that statement, Dr. Chang reported that Plaintiff's current diagnoses were chronic pain secondary to a motor vehicle accident and fibromyalgia, and frontal and temporal lobe atrophy secondary to a traumatic brain injury. Dr. Chang assessed that Plaintiff would be unable to work. She checked boxes indicating that Plaintiff could: lift ten pounds; stand/walk (cumulative in an eight-hour day) for less than one hour; sit without limitation; and drive without limitation. Dr. Chang also assessed that Plaintiff should avoid: repetitive grasping and fine manipulation with his right hand; bending; carrying; squatting; stooping; climbing; pushing; overhead reaching; pulling; twisting; and kneeling. She also reported that Plaintiff would require unscheduled breaks, would be absent more than two days per month, and ambulates with a cane.
In her decision, the ALJ found Dr. Chang's opinion was “not persuasive.” In doing so the ALJ explained:
Mona Chang, MD, the claimant's treating physician, indicated that the claimant could lift less than ten pounds and stand and walk less than one hour with unscheduled breaks during an eight-hour workday and more than two absences per month (Exhibit C16F). This opinion is not persuasive because it is not supported by or consistent with the evidence of record, including Dr. Chang's own records.(Admin. Tr. 22).
2. Whether the ALJ's Decision to Discount Dr. Bonita's Fingering Limitation is Supported by Substantial evidence
Plaintiff argues:
An Administrative Law Judge is supposed to base her decision on the medical evidence of record, as opposed to engaging in her own medical analysis of Plaintiff's condition. Morales v. Apfel, 225 F.3d 310, at 319 (3d Cir. 2000). In the instant case, all the opinions from medical providers concerning the Plaintiff's physical limitations support the conclusion of disability. The ALJ states:
The undersigned will not defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical finding(s) or medical opinion(s), including those from Plaintiff's medical sources.
She boldly announces from the outset that she is not deferring to medical opinion. Even the opinion from the social security physician reviewer, Dr. Bonita, would support the conclusion of disability, if his assessment of Plaintiff having a limitation on the use of his hands were
accepted, but of course the ALJ rejects this finding, dedicated as she appears to be finding the Plaintiff capable of work.
This case doesn't present the recurring issue of whether the ALJ inappropriately rejected the opinions of treating physicians in favor of social security's reviewing medical sources, since there aren't any physician opinion, treating or otherwise, which would support a conclusion rejecting disability. The issue in this case is whether an ALJ is compelled to base her decision on medical evidence, or can she just decide on the basis of her gut feeling or some other criteria unrelated to the opinions of medical providers.(Doc. 16, pp. 16-17).
The only authority cited by Plaintiff in support of his argument is a Third Circuit case, Morales v. Apfel. 225 F.3d 310, 319 (3d Cir. 2000). In Morales, the record included opinions by one nontreating psychologist (Dr. Jaffe), one nontreating psychiatrist (Dr. Linder), one treating psychiatrist (Dr. Erro), and two nonexamining psychologists (Dr. Barrett and Dr. Brennan). The opinions by Dr. Jaffe, Dr. Linder, and Dr. Erro included significantly more serious mental limitations than the opinions of Dr. Barrett and Dr. Brennan. Also significant in Morales, Dr. Jaffe noted he suspected the claimant of malingering, but that malingering was a symptom of one of the claimant's diagnosed mental conditions. The ALJ in Morales accepted the opinions of Dr. Barrett and Dr. Brennan, and rejected all others based on the ALJ's own impression that the claimant was “manipulative, unmotivated, and possibly malingering, ” and that the claimant's IQ scores did not “comport with claimant appearance and demeanor.” Id. at 314. The Third Circuit held that the ALJ's rejection of the opinions by Dr. Jaffe, Dr. Linder, and Dr. Erro was not supported by substantial evidence because the ALJ's refusal to credit these opinions was not based on objective evidence, and instead was merely based on the ALJ's own “amorphous impressions.” Id. at 318. After concluding that these opinions were improperly rejected, the Third Circuit remanded because “the ALJ did not give proper consideration to the opinions of Dr. Erro, Dr. Jaffe, and Dr. Lindner, all of which present counterveiling [sic] evidence to the Brennan/Barrett evaluation.” Id. at 319.
I am not persuaded that remand is required because the ALJ improperly rejected the opinion of Dr. Bonita based on the improper substitution of the ALJ's own amorphous impressions of Plaintiff's demeanor. To the extent Plaintiff argues that the ALJ's decision to discount the fingering limitations assessed by Dr. Bonita is not supported by the record, however, I find this argument has considerable merit.
The ALJ cited two reasons for discounting the handling and fingering limitations assessed by Dr. Bonita. First, the ALJ reasoned that the limitations were not supported “objectively, including the EMG.” (Admin. Tr. 22) (emphasis added). Second, the ALJ reasoned that the handling and fingering limitations appear “to be based upon the one-time self-reported snapshot of the consultative examination and mentions of the claimant's subjective complaints dropping things.” Id.
First, I note that the record in this case does not include an electromyogram or “EMG.” Thus, to the extent the ALJ relies on it, this reliance is not supported. Plaintiff did have an electrocephalogram “EEG.” (Admin. Tr. 343). These are two separate tests that measure different things. An EMG allows for the recording of electrical impulses generated by muscle activity, while an EEG tracks electrical activity in the brain. After complaining of increased memory problems on July 6, 2017, Plaintiff was referred for an EEG. (Admin. Tr. 326, 329). The EEG, ordered to evaluate memory problems, was normal. (Admin. Tr. 343). Thus, it appears the ALJ's reliance on a normal EMG related to a hand impairment is misplaced.
Second, the ALJ appears to mischaracterize that the fingering limitation was based only on Plaintiff's subjective statements to Dr. Lindsay that he dropped things. However, a finger tremor was also documented during the clinical examination by Dr. Lindsay. Specifically, Dr. Lindsay noted:
Hand and finger dexterity were intact, but limited in strength. He also had a tremendous tremor in his fingers. His grip strengths was 4/5 bilaterally. He had a difficult time buttoning a button, but he was able to zip and use the Velcro strap. He was unable to tie a shoelace.(Admin. Tr. 502). Thus, Dr. Lindsay, and by extension Dr. Bonita's, assessment was based on a symptom observed during an examination, not just Plaintiff's statement that he “dropped things.” The ALJ did not discuss Dr. Lindsay's observations before discounting the fingering limitations assessed by multiple medical sources.
Although I agree with the Commissioner that the finger tremor is not well documented in the record as a whole, (see Doc. 17, pp. 5-6), the fact remains that the ALJ did not address Dr. Lindsay's observations before disregarding the finger tremor. Furthermore, each medical source that provided an opinion about Plaintiff's physical limitations included a limitation to account for that tremor. The ALJ disregarded all of those opinions, and Dr. Lindsay's observation of the tremor, and included no fingering limitation in the RFC assessment.
All three occupations identified by the VE would require “frequent” fingering. See DOT #249.587-018, 1991 WL 672349 (explaining that the occupation of document clerk requires frequent fingering); DOT #209.587-010, 1991 WL 671797 (explaining that the occupation of envelope addresser requires frequent fingering); and DOT #713.687-018, 1991 WL 679271 (explaining that the occupation of final assembler requires frequent fingering). No. evidence in the record supports a conclusion that a Plaintiff would be able to perform these occupations if he were limited to “occasional” fingering.
Accordingly, I find that the ALJ's evaluation of the “fingering” limitation assessed by Dr. Bonita is not supported by substantial evidence, and that this error requires remand.
V. RECOMMENDATION
IT IS RECOMMENDED that Plaintiff's request for remand be GRANTED as follows:
(1) The final decision of the Commissioner should be VACATED.
(2) This case should be REMANDED to the Commissioner for further development of the record and, if necessary, to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. § 405(g).
(3) Final judgment should be issued in favor of Eric David Bair.
(4) The clerk of court should 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.