Opinion
3:20-cv-1377
09-16-2021
JAKE BYLSMA, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security[1], Defendant.
MARIANI, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. U.S. Magistrate Judge
This is an action brought under 42 U.S.C. §405(g), seeking judicial review of the Commissioner of Social Security's (“Commissioner”) final decision denying Jake Douglass Bylsma's (“Bylsma”) claim for disability under Title II of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge for the preparation of the report and recommended disposition pursuant to the provisions of 28 U.S.C. §636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.
For the reasons stated herein, we respectfully recommend that the decision of the Commissioner be remanded.
I. Background and Procedural History
Bylsma is an adult individual born December 15, 1984, who was 29 years old at the time of his alleged onset date of disability - December 20, 2013. (Tr. 106). Bylsma's age at the onset date makes him a younger individual under the Social Security Act. See 20 C.F.R. § 404.1563. Bylsma's childhood was rather mundane, as he was raised in a stable family, had friends, played sports, and had a part-time job before graduating high school. (Tr. 400). Thereafter, Bylsma enlisted in the Army and was sent to Iraq, where he received a promotion to team leader within 3 years and was ultimately made a non-commissioned officer. (Tr. 401). Bylsma held 3 positions, that of an infantry weapons crew member, an infantry team leader, and a combat surveillance and target-acquisition non-commissioned officer. (Tr. 67). Bylsma described that his job was to step on bombs or tell other people to step on bombs. (Tr. 402) . Service records show that in his position as a unit member he was involved with no fewer than 15 IED (bomb) explosions and received commendations in 2 incidents. (Tr. 201.) It was noted that in the last 7IED incident, Bylsma was the only survivor and suffered a concussion as well as a fractured vertebrae and herniated disc in his back. (Tr. 201, 402)
While in the military, Bylsma received a bachelor's degree in homeland security with a concentration in terrorism and studied for a master's degree. (Tr. 54) After discharge from the Army, Bylsma worked as a defense contractor, helping to train troops in Africa, until his back was reinjured in December 2013. (Tr. 52).
In 2013, Bylsma filed a claim for VA service-connected disability and was awarded partial disability of $761.00 per month in 2013, which was raised in 2017 to $3,000 per month when he was found to be 80% disabled due to a combination of physical impairments and a 50% rating for post-traumatic stress disorder. (Tr. 54, 289-90).
On September 19, 2018, Bylsma protectively filed a Title II application for a period of disability benefits. (Tr. 25). In the application, Bylsma alleged disability beginning December 20, 2013. (Id.). Bylsma reported that the following impairments prevent him from being able to work: lumbar spine spondylosis, degenerative disc disease, intervertebral disc syndrome with left and right sciatic nerve, mild traumatic brain injury, post-traumatic stress disorder, bilateral tinnitus and post concussive disorder. (Tr. 107). Bylsma's claim was denied on October 19, 2018. (Tr. 117-120). Thereafter, Bylsma filed a timely request for an administrative hearing on November 2, 2018, which was granted. (Tr. 121-22, 123-37). Bylsma appeared and testified before Administrative Law Judge (“ALJ”) Sharon Zanotto on March 5, 2019, and at a supplemental hearing on June 18, 2019, with both hearings in Harrisburg, Pennsylvania. (Tr. 25) Bylsma appeared pro se at both hearings. (Id.). At the time of the hearing, Bylsma was homeless but generally resided in Gettysburg, Pennsylvania, which is in the Middle District of Pennsylvania. (Tr. 22).
In a written decision dated March 3, 2020, the ALJ denied Bylsma's application for benefits. (Tr. 22-38). Bylsma sought further review of his claim by the Appeals Council, but his request was denied for review on June 3, 2020. (Tr. 9-13). Bylsma subsequently filed an appeal to this court on August 5, 2020, arguing that the ALJ's decision was not supported by substantial evidence. (Doc. 1). On December 16, 2020, the Commissioner filed his answer, in which he maintains that the ALJ's decision was correct and in accordance with the law and regulations. (Doc. 13, at 3). This matter has been fully briefed by the parties and is ripe for decision. (Doc. 15; Doc. 16; Doc. 17).
We note that there is very limited medical evidence in the file. Indeed, the medical record holds only 155 pages. (Tr. 259-414). The records which are in the file indicate that Bylsma was found to be 80% disabled. Bylsma was found unemployable by the VA for issues related to back injuries, tinnitus, migraine headaches, and post-traumatic stress disorder. (Tr. 289-300; 318-29). Despite references to those conditions, there is little or no evidence of his treatment for the conditions. At the first hearing, Bylsma was upset and angry that there was so little evidence in the file. The exchanges between the ALJ and Bylsma with regard to the lack of medical evidence at both hearings is troubling.
The ALJ explained the five-step process to Bylsma at the first hearing. (Tr. 79-82) The ALJ informed Bylsma that “we advise you that you have the right to be represented by an attorney of your choosing, and at your own expense. Do you understand that right?” (Tr. 80). At no point did the ALJ explain the contingency fee or that the fee needed to be approved by Social Security Administration before it could be charged.
(Id.). The ALJ stated that there were no records in the file and said, “When you represent yourself it is your job to get them into the file.” (Tr. 83). Bylsma testified that his claim was a wounded warrior claim and that when he filed his claim at the Social Security field office he was told that the administration would obtain the records. (Id.). At the first hearing, the ALJ and Bylsma argued and the ALJ chided Bylsma that he should allow her to speak. (Tr. 85). The ALJ told Bylsma that if he went forward that day, he could tell her where the medical evidence was located and she could obtain it. (Tr. 88.) He told her that he had been seen in about 13-15 different VA hospitals. (Tr. 89). He said again that he had been seen at “two dozen VA offices.” (Tr. 90). He stated, “They don't even like me and it is mutual.” (Id.) Bylsma stated that he was in Idaho prior to 2016 and the ALJ stated that he needed to tell them where to get the records. (Tr. 91-92). The ALJ advised that if he allowed the hearing office to obtain his records they could do so at no charge, and that if Bylsma requested them himself he would likely be required to pay for them. (Tr. 91). Bylsma indicated that he did not trust the hearing office to obtain the records. (Tr. 91-92). At the second hearing, there was a great deal of tension evident from the transcript. The ALJ and Bylsma almost immediately started arguing, talking over each other. and then shouting at each other. (Tr. 43-44). Bylsma was upset that the additional medical records were not in the file despite the fact that more than 3 months had passed. (Id.). At more than one point, the ALJ threatened to cancel the hearing. (Tr. 44). Bylsma testified that he had spoken with 5 people in the hearing office to try to help them request his medical records after the prior hearing and that one, Ms. Stokes, had told him that the ALJ “scoffed” at him. (Tr. 45-46).
Bylsma testified that he was charged with a DUI because the DA's friend stabbed him in a Walmart, implying that the DA was bullying him. (Tr. 55). He said, “If I stick my neck out in public, I get stabbed, I get thrown in jail, I get in fights. I mean, you name it. I don't go to public places.” (Id.). He stated that he had been charged with 5 felonies. (Id.) The ALJ asked if she could get those records to support his claim that he could not get along with others, and he said that he wanted her to get them. (Tr. 56). He said they could be found in “Adams County.” (Id.). Again, Bylsma argued with the ALJ on the record that Ms. Stokes had told him that the office made a mistake in not requesting his medical records and that the records from Coeurs D'Alene, Spokane and other VA clinics were not in the file. (Tr. 57-58). Again, the ALJ threatened to stop the hearing. (Tr. 59).
The ALJ next asked Bylsma why he could not work and he testified, “My broken back really, but being able to deal with people in Pennsylvania. People on a daily basis because I've been - I've got to go back into the woods because I'm going to wind up dead or in jail.” (Tr. 60). The ALJ made the belittling response, “So difficulty getting along with putrid Pennsylvania people, and your broken back are the reasons you can't work. Is there anything else, sir?” (Id.). The ALJ next discussed the meeting of the VA disruptive behavior committee, barring Bylsma from the VA medical center due to behavioral issues. (Tr. 63).
The ALJ then took testimony from the vocational expert, Mr. Mitchell Schmidt (“Mr. Schmidt”). (Tr. 65). The ALJ asked Bylsma if he had objections and he stated that he, “might as well be a clown with a big rubber nose, Mr. Bozo. I don't know who I am talking to.” (Tr. 66). Mr. Schmidt testified that Bylsma's past work included a combat surveillance and target-acquisition non-commissioned officer, an infantry weapons crew member, and an infantry unit leader. (Tr. 67). He stated that there was no comparable civilian job. (Tr. 68).
The ALJ stated that she was assuming a person with degenerative disc disease, anxiety, obsessive-compulsive disorder, depressive and bipolar disorder. (Tr. 68). Bylsma interrupted her that he thought she had the wrong file since “None of this is me, what you just said.” (Id.). The ALJ cut him off and told the VE that she assumed later records would confirm this diagnosis and asked at step five whether such a person, limited to light work, with occasional interaction with supervisors, no public interaction and no work in coordination with co-workers, could perform jobs in the national economy. (Tr. 69). Mr. Schmidt stated that such a person could be employed as a garment sorter, a folder, or a fruit cutter. (Tr. 70). The ALJ then asked if the hypothetical individual could not interact appropriately with supervisors whether that person could work in those positions. (Tr. 70-71). Mr. Schmidt testified that the person would be unemployable as even unskilled work requires one to take direction. (Tr. 71).
The ALJ closed the hearing by stating that she would make a decision after the records were received and reviewed by Bylsma and the ALJ. (Tr. 72-73). Bylsma asked how he would know that his records were received and the ALJ answered that the records would be sent to him and he could respond within 10 days. (Tr. 74).
As noted, the medical evidence in the case is limited and appears to have been obtained from only one of reportedly two dozen different VA facilities at which Bylsma was treated. Nonetheless, the limited records available indicate that Bylsma does have a severe back impairment with a herniated disc and impingement of the nerve root, as well as severe mental impairments.
On August 19, 2014, Bylsma was seen at the VA medical center and complained of nerve pain in both legs and back pain. (Tr. 276). He was homeless and stated that he wanted to return to work when his back was “fixed.” (Id.). He was referred to the shelter and he was given bus vouchers and meal tickets. (Tr. 276-77). On August 22, 2014, Bylsma was seen at Martinsburg VAMC by Michael Morris and complained of clicking in the right ear and tightness in his throat. (Tr. 274). Lab results from August 27, 2014, indicate that Bylsma tested negative for all illicit substances. (Tr. 281).
On October 14, 2014, Bylsma appeared before Joseph Canvin at Martinsburg VA. It was noted that he came for an evaluation and had been diagnosed with a concussion and anxiety and that his symptoms were considered “associated with a behavioral health condition.” (Tr. 271). He stated that he did not talk to his doctor and “hate that bitch.” (Tr. 271). Dr. Canvin noted that “He is very upset in the office today right from the start. He is hyperkinetic and alternating sitting and pacing in the room.” (Tr. 272). Based on his behavior, the doctor recommended a behavioral health assessment. (Id.).
On April 16, 2015, a compensation and pension examination as performed by various medical sources, imaging studies showed that the paranasal sinuses were aerated. (Tr. 33, 336). Bylsma was diagnosed with lumbar spine spondylosis; degenerative disc disease; radiculopathy sciatic nerve right lower extremity; and radiculopathy sciatic nerve left lower extremity. (Tr. 341). It was noted that Bylsma had undergone 3 epidural injections as well as physical therapy, and that he was limited in the ability to bend forward. (Tr 342). Bylsma had normal muscle strength in the hip, knee, and ankle, but he had abnormal reflexes in the left knee. (Tr. 348). SLR was positive on right. (Tr. 349). Mild numbness was noted on the right and involvement of the nerve root at ¶ 4-S1 was noted on the right. (Tr. 350). A brace was used occasionally. (Tr. 352). It was noted that an MRI of 5/1/05 indicated a disc protrusion at ¶ 5-S1 with nerve root impingement. (Tr. 353). A later MRI of 2007 showed worsening of the condition at ¶ 5-S1 level with neural inflammation/impingement. (Id.) While the diagnosis was not changed, a progression of symptoms was noted by Nurse Practitioner Mary Bachco. (Tr. 355). Bylsma's PTSD was evaluated by Dr. Verdeyan and it was noted that he had occupational and social impairment with reduced reliability and productivity. (Tr. 399). An assessment was made of Bylsma's mental health on the basis of an examination as well as a review of his medical record and military service record. (Id.). It was noted that Bylsma grew up in a stable home and he was the youngest of three children. (Tr. 400). His father was a construction foreman and his mother was an educator. (Id.) He graduated high school, where he had friends, played football, worked on farms, and for a pizza delivery store before joining the military. (Id.) He denied any abuse during childhood. (Id.). Bylsma was a good soldier and was a Team Leader within 2 years. (Tr. 401). Bylsma reported that he killed enemy combatants in Iraq. (Tr. 402). His service reports indicated that his back was injured when a 300-pound bomb exploded and he was the only unit member to survive it. (Id.) He lost friends on missions in Iraq and left after the injury of 2006.
He worked for a defense contractor but lost the job in 2013 when he reinjured his back when bending to pick up a small bag. (Id.). On mental status examination, he was depressed and anxious, with fair insight and fair impulse control. (Tr. 403). Bylsma reported sleep problems and was not found to have any issue with substance abuse. (Id.) It was opined that Bylsma met PTSD criteria. Specifically, it was found that Bylsma had directly experienced trauma and had witnessed traumatic events as they occurred to others. (Tr. 404). He suffered recurrent involuntary and distressing memories. (Tr. 405). He felt distress at exposure to external cues resembling the events and felt marked physiological reactions to those cues. (Id.) Bylsma showed a persistent negative state; anhedonia; feelings of detachment and persistent inability to experience positive emotions. (Id.). He exhibited irritable and angry behavior with little or no provocation, hypervigilance, and exaggerated startle response as well as sleep disturbance. (Id.). The disturbance caused significant distress or impairment in social, occupational, or other functioning. (Id.).
On February 11, 2016, the Disruptive Behavior Committee met and discussed Bylsma. They decided not to take action at that time but to mandate reporting of behaviors to assess need for support to ensure safety, as noted by Michael Myers, LMHC. (Tr. 270-71).
On February 17, 2016, Sarah Martin of Mann-Grandstaff VAMC spoke with Bylsma about obtaining a HUD housing voucher. He stated that he would only stay in the area while awaiting back surgery. (Tr. 270). When it was explained that he would need to have case managers in his home once a month he called it “home invasion” and stated it was not the program for him. (Tr. 269-70).
On May 17, 2016, Bylsma contacted Andrew Witkowski of the Mann-Grandstaff VAMC. He had stated that he recently declined a voucher for HUD/VASH (housing assistance) because he did not want case managers in his home, but he recently reconsidered and wished housing, because he was homeless. (Tr. 267).
On July 1, 2016, Bylsma spoke with Dwayne Thurman of the Mann-Gradstaff VAMC. (Tr. 265-66) He was cursing and saying he never got help. (Id.). Bylsma refused housing offered as he wanted a house not an apartment and did not want to be visited once a month. (Id.). Staff noted that every other word was a curse and that he was “very hostile and agitated.” (Tr. 266).
On February 8, 2017, the Department of Veterans Affairs issued a decision which rendered Bylsma 80% disabled, based on an application received on August 15, 2014. In that decision, Bylsma's rating for lumbar degenerative disc disease was increased from 10% to 50%. (Tr. 194).
On July 19, 2018 the disruptive Behavior Committee again met. (Tr. 306) It was recommended that Patient Red Flag (PRF) be continued. (Id.).
On September 27, 2018, it was noted by a VA staff member that Bylsma had not been seen in the clinic since June due to a lack of appointments. It was noted that he had been involved in no fewer than 15 IED incidents and he had received letters of commendation for 3 of the events. (Tr. 201). It was noted that in the last event he had a fracture of the L4/5 vertebrae. (Id.). An October 10, 2018, note indicated that Bylsma was not allowed to return to the York VA clinic because of behavioral concerns. (Id.). An eligibility assessment of the same date indicates that Bylsma was assessed between 50% and 100% disabled with a 10% disability for tendon inflammation, a 10% disability for degenerative arthritis of the spine, a 10% disability for tinnitus, a 10% disability for migraine headaches, a 10% disability for paralysis of the sciatic nerve, and a 50% disability for post-traumatic stress disorder. (Tr. 289-90).
On October 3, 2018 Bylsma completed a Function Report. (Tr. 221-33). He indicated that he sometimes lives with his father, but that he stayed with other relatives. (Tr. 221). He indicated that he had periods of being bedridden for up to 9 months after being separated from the army after injury from a 300-pound bomb in Mosul, Iraq. (Id.) He indicated that he had a therapy dog which would stay with family members when he was bedridden. (Tr. 210). He noted that when healthy, he had no problems, but that on bad days, he was bedridden. (Id.) He stated that he could be healthy for 9 months and then not able to work for 9 months. (Tr. 222). He reiterated that he was fine on good days and incapacitated on bad. (Tr. 224-25). He stated that he used to fight for his country and was now grateful to get out of bed and that on good days he would travel but on bad days, he would be in “my happy place in my head.” (Tr. 225). He stated that his PTSD and chronic pain make him irritable, that he does not like most people and that he keeps to himself. (Tr. 226). He stated that his back injury, sciatic impingement, brain injury, and PTSD affect every aspect of his life. (Id.). He stated that he does not follow written instructions and does not take verbal instruction.
(Id.). He stated that he does not like getting close to people, he has dreams and fears of munitions and roadside bombs, and he becomes scared when he sees garbage on roads. (Tr. 227). He stated that he tried to keep working, but he could not because flare-ups of back pain would render him helpless. He indicated that he was falsely charged with DUI and domestic relations assault. (Tr. 228). He stated that he did not get along with police. (Tr. 227).
On October 19, 2018, Bylsma's medical record and application for Social Security was reviewed by state agency medical doctor, Dr. Ritner and state agency psychologist Dr. Gavazzi. (Tr. 106-12). It appears that at the time they reviewed the record, there was no medical evidence received from the VA Medical Center but they had received information regarding Bylsma's VA claim from the Dept. of Veteran's Affairs. (Tr. 108). Dr. Ritner stated that there was insufficient evidence to make a determination. (Tr. 109). Similarly, Dr. Gavazzi found that there was not enough evidence to evaluate Bylsma's mental impairments. (Tr. 110). It is unclear whether Bylsma's Function Report was in the file at the time that the state agency determination was made.
With regard to the VA findings, the ALJ stated that they involved a different standard, and therefore they were not relevant or persuasive. (Tr. 32). As the state agency physicians had not rendered an opinion, this effectively meant that the ALJ regarded the file as having no medical opinion.
II. Legal Standards
When reviewing the denial of disability benefits, the Court's review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); id. § 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 (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). 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 the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that he or she 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 [Commissioner]'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 . . . .”).
To receive disability benefits, 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 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(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. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).
A “physical or mental impairment” is an impairment resulting from “anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
“Substantial gainful activity” is work that (1) involves performing significant or productive physical or mental duties, and (2) is done (or intended) for pay or profit. 20 C.F.R. § 404.1510.
The Commissioner follows a five-step sequential evaluation process in determining whether a claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a). Under this process, the Commissioner must determine, in sequence: (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 past relevant work, considering his or her residual functional capacity (“RFC”); and (5) whether the claimant is able to do any other work, considering his or her RFC, age, education, and work experience. Id. § 404.1520(a). The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f); Mason, 994 F.2d at 1064.
An extensive list of impairments that warrant a finding of disability based solely on medical criteria, without considering vocational criteria, is set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1.
“Residual functional capacity” is the most a claimant can do in a work setting despite the physical and mental limitations of his or her impairment(s) and any related symptoms (e.g., pain). 20 C.F.R. § 404.1545(a)(1). In assessing a claimant's RFC, the Commissioner considers all medically determinable impairments, including those that are not severe. Id. § 404.1545(a)(2).
III. Discussion
In her March 6, 2020, decision denying Bylsma's claim, the ALJ evaluated Bylsma's application for benefits at each step of the sequential process. First, the ALJ found that Bylsma met the insured status requirement on December 31, 2015. (Tr. 27). At step one, the ALJ found that Bylsma had not engaged in substantial gainful activity during the period of December 20, 2013, the alleged onset date, to December 31, 2015, his date last insured. (Id.). At step two, the ALJ found that the following impairments were medically determinable and severe during the relevant period: degenerative disc disease, lumbar spine spondylosis, radiculopathy, and posttraumatic stress disorder. (Id.). Additionally, the ALJ found that Bylsma suffered from the non-severe impairments of a right maxillary mucous retention cyst and headaches post-concussion. (Tr. 27-28). The ALJ further found that Bylsma's alleged mild traumatic brain injury and bilateral tinnitus were not medically determinable impairments. (Tr. 28). At step three, the ALJ found that Bylsma 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, during the relevant period. (Tr. 28).
Between steps three and four, the ALJ assessed Bylsma's RFC.
The ALJ found that Bylsma had the capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) with additional limitations. (Tr. 30).
The ALJ fashioned the following RFC:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except can stand and/or walk for 6 hours a day and sit for 8 hours a day with occasional crouching, kneeling and stooping. The claimant is limited to occasional interaction with supervisors and no work in coordination with coworkers or coworkers and supervisors.
(Id.).
At step four, the ALJ found that Bylsma was unable to perform any past relevant work. (Tr. 33). At step five, the ALJ determined based on
Bylsma's age, education, work experience, and RFC, that there were a significant number of jobs in the national economy that Bylsma could perform, including working as a garment sorter, folder, and fruit cutter. (Tr. 33-34). Bylsma contends generally that the decision of the ALJ is not supported by substantial evidence in the record and additionally raises four specific issues on appeal attacking various aspects of the ALJ's decision. We shall address each argument seriatim.
1. Substantial Evidence Does Not Support the ALJ's Decision to Deny Disability Benefits.
On appeal, Bylsma argues that the ALJ's decision is not supported by substantial evidence. (Doc. 15, at 11). Bylsma asserts that the ALJ erred because she failed to consider the opinions of Dr. Verdeyen and disregarded the opinion of Nurse Practitioner Bachko, thereby rendering her consideration of the record devoid of support by any medical opinion. (Doc. 15, at 11-12). Bylsma argues that pursuant to SSR 85-16, “development of the record is required when medical evidence is incomplete.” (Id. at 12).
The Commissioner argues that Bylsma has taken the erroneous position that the ALJ was required to get another medical opinion and that Bylsma errs in arguing that the ALJ's RFC did not properly account for Bylsma's “moderate limitations” in dealing with others. (Doc. 16, at 11).
We read Bylsma's argument as to his limitations in dealing with others differently than the Commissioner, and read it not to state that the ALJ failed to account for “moderate limitations, ” but rather that the ALJ's finding of “moderate limitations” was not supported by substantial evidence and that she should have found more serious impairments.
We tend to agree with Bylsma that the ALJ erred in failing to obtain a medical opinion as to the RFC and erred in failing to consider Dr. Verdeyan's findings and the record as a whole that Bylsma had more than moderate limitations in interacting with others.
In crafting the RFC, the ALJ must consider all the evidence of record, including medical signs and laboratory findings, daily activities, medical source statements, and a claimant's medical history. SSR 96-8p, 1996 WL 374184, at *5; see also Mullin v. Apfel, 79 F.Supp.2d 544, 548 (E.D. Pa. 2000). An ALJ's RFC finding, however, must be supported by the medical evidence. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).
While the Commissioner correctly asserts that the RFC is an administrative finding rather than a medical finding, “[t]here is an undeniable medical aspect to an RFC determination.” Barnett v. Berryhill, No. 3:18-CV-637, 2018 WL 7550259, at *4 (M.D. Pa. Dec. 10, 2018). In relevant part, the RFC entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Barnett v. Berryhill, No. 3:18-CV-637, 2018 WL 7550259, at *4 (M.D. Pa. Dec. 10, 2018). Therefore, “rarely can a decision be made regarding [a] claimant's RFC without an assessment from a physician regarding [the] functional abilities of [a] claimant.” See Donat v. Berryhill, No. 17-5096 2018 WL 3186953, at *4 (E.D. Pa. Jun. 28, 2018); see also Gormont v. Astrue, No. 11-2145 2013 WL 791455 (M.D. Mar. 4, 2013). “Although an ALJ is entitled to resolve conflicts in the evidence and determines the ultimate question of disability, as a lay person, the ALJ is not permitted to interpret raw medical data when evaluating a claimant's functional capacity.” See Donat v. Berryhill, No. 17-5096 2018 WL 3186953, at *4 (E.D. Pa. Jun. 28, 2018); see also Doak, 790 F.2d at 29 (holding that no physician suggested that the activity Doak could perform was consistent with the definition of light work, thus the ALJ's conclusion that he could was not supported by substantial evidence); 20 C.F.R. § 404.1545.
The Commissioner argues that the ALJ is not required to match medical opinion evidence in order to fashion a claimant's RFC and “need not rely on any single medical opinion in formulating the RFC.” (Doc 16, at 12). The Commissioner errs in this argument, as this case is not one in which the ALJ has chosen one medical opinion over the other. This is a case in which there are only two opinions and the ALJ has found one not persuasive and ignored the other entirely.
In this case, Bylsma alleges that the following physical and mental health conditions limit his ability to work: lumbar spine spondylosis, degenerative disc disease, intervertebral disc syndrome with left and right sciatic nerve, mild traumatic brain injury, post-traumatic stress disorder, bilateral tinnitus, and post concussive disorder. (Tr. 107). Upon review of the medical record, the ALJ concluded that the following impairments were medically determinable and severe during the relevant period: lumbar spine spondylosis, degenerative disc disease, radiculopathy, and posttraumatic stress disorder. (Tr. 27).
Subsequently, between steps three and four of the sequential process, the ALJ determined that Bylsma could perform a limited range of light work with additional limitations to address his medical impairments. (Tr. 30). The ALJ based this determination solely on comparing Bylsma's subjective complaints to raw medical data from his treatment records to arrive at an RFC of light work. No. acceptable medical source assessed Bylsma's functional capacity and no treating physician opined on the effects of his lumbar spine spondylosis, degenerative disc disease, radiculopathy, and post-traumatic stress disorder on his ability to perform a limited range of light work. Therefore, the Court is left to speculate how Bylsma's physical impairments affect his RFC, which this Court cannot do. See Biller v. Acting Comm'r of Soc. Sec., 962 F.Supp.2d 761, 779 (W.D. Pa. 2013); see also Gormont v. Astrue, 3:11-CV-02145, 2013 WL 791455, at *8 (M.D. Pa. Mar. 4, 2013).
Because the Court cannot speculate as to Bylsma's physical and mental impairments and their effect on his RFC assessment, we find that the ALJ's RFC is not supported by substantial evidence.
To address the second prong of Bylsma's argument, the fact that the ALJ erred in finding that he suffered only moderate limitations in his ability to interact with others, we find that the evidence of record is not consistent with such a finding. As is noted, the medical record is sparse. But one must consider that the medical record is not sparse because of lack of treatment, but because there are arguably records from almost two dozen medical facilities which were not obtained. (Tr. 90). Moreover, even the limited medical evidence in the file paints a picture of an individual with far more than moderate limitations in relating to others.
In October of 2014, more than one year prior to the expiration of his date last insured, Bylsma appeared before the medical center in Martinsburg, WV and was noted to be “agitated” and “pacing in the room.” (Tr. 272). He reported that he did not talk to his doctor, calling her a “bitch” and stating that he “hated her.” (Tr. 271). Based on his behavior the doctor recommended a behavioral health assessment. (Tr. 272).
In April of 2015, Dr. Verdeyan assessed Bylsma for post traumatic stress disorder and found that he “exhibited irritable and angry behavior with little or no provocation, hypervigilance and exaggerated startle response.” (Tr. 405).
Records showed that just two months after Bylsma's DLI, the Disruptive Behavior Committee of the Veteran's Administration met to discuss Bylsma's disruptive behaviors and issued a reporting mandate, in order to assess the need for safety supports when dealing with Bylsma. (Tr. 270-271).
In addition to the behaviors noted prior to Bylsma's DLI, there were several other notes made by VA staff with regard to aggressive and aberrant behaviors. In the time period from February 17, 2016 through July 1, 2016, three separate medical staff members at the VA medical center in Mann-Grandstaff VAMC found Bylsma to exhibit behavioral problems. (Tr. 2690-270, 267, 265-266). On July 1, 2016, Dwayne Thurman noted that every other word was a curse and that Bylsma was “very hostile and agitated.” (Tr. 266).
The fact that Bylsma was unable to control himself with VA staff is not the only evidence pointing to more troubling deficiencies in his ability to control his behavior. There is the fact that he testified to getting into legal difficulty repeatedly as a result of his behavior. (Tr. 55). The ALJ found him so difficult that the record appears to reflect that she lost her own composure more than once which evidences that Bylsma exhibits more than moderate behavioral issues. (Tr. 43-44 50, 60).
It is the duty of ALJs to maintain their composure and to regulate the behavior of those litigants who appear before them. We concede that this is sometimes a difficult task, and here we give the ALJ the benefit of the doubt that the interaction between the ALJ and Bylsma is an outlier. We also recognize that some litigants' behavior is a challenge to judicial officers and that the ALJ, here, attempted to control Bylsma. Nevertheless, we must consider the difficulty which the ALJ encountered in controlling Bylsma.
These facts are consistent with the opinion of Dr. Verdeyan that Bylsma exhibited irritable and angry behavior with little or no provocation. (Tr. 405). Those findings were not addressed properly by the ALJ and on remand they should be considered.
2. The ALJ Erred in Failing to Call a Medical Expert to Testify
Next, Bylsma argues that the ALJ erred in failing to order that Bylsma undergo a medical or psychological consultative examination pursuant to 20 CFR 404.1519a. (Doc. 15, at 12). The Commissioner asserts that the ALJ had no strict obligation to order a consultative examination and that had she ordered one it would have taken place three years after the date last insured and could not possibly provide an accurate assessment of his functioning during the relevant time period. (Doc. 16, at 20).
We agree that the ALJ did not properly obtain medical opinion evidence in the file.
The Commissioner asserts that the ALJ obtained all of the plaintiff's VA treatment records and that, “although the medical evidence for the relevant period is limited, this is due to the fact that plaintiff rarely sought treatment.” (Doc. 16, at 20). The Commissioner further states that “plaintiff's physical and mental examinations showed some positive signs, but were generally unremarkable.” (Id.).
We cannot find that the ALJ is correct as to either of those statements. First, the ALJ did not obtain all of Bylsma's VA treatment records. It was the testimony of Bylsma at his first hearing that he had been receiving treatment in Idaho prior to 2015, which was the relevant time period. (Tr. 91-92). Bylsma advised that he had been seen in no less than 13 VA medical centers. (Id.). At his second hearing, he mentioned that he had been treated at the VA in Coeur d'Alene (Idaho) and Spokane (Washington). (Tr. 62-63). It was noted in his record that he had been banned from the VA facility in York. (Tr. 201). Bylsma stated that he had been to dozens of VA offices. (Tr. 62). The record does not reflect that the ALJ requested records from York, Coeur d'Alene or Spokane, and there are no records from those facilities.
There were medical tests contained in the file which documented Bylsma's conditions. In particular, there were 2 MRI's which indicated symptoms which possibly met or equaled a listing. An MRI of May 1, 2005 indicated a disc protrusion at ¶ 5-S1 with nerve root impingement. (Tr. 353). A later MRI of 2007 showed worsening of the condition at ¶ 5- S1 level with neural inflammation/impingement. (Id.). Additionally, the ALJ acknowledged that Bylsma suffered from radiculopathy. (Tr.27).
20 CFR Part 404, Subpart P, Appendix 1, provides:
1.15 Disorders of the skeletal spine resulting in compromise of a nerve root(s) (see 1.00F), documented by A, B, C, and D:
A. Neuro-anatomic (radicular) distribution of one or more of the following symptoms consistent with compromise of the affected nerve root(s):
1. Pain; or
2. Paresthesia; or
3. Muscle fatigue.
AND
B. Radicular distribution of neurological signs present during physical examination (see 1.00C2) or on a diagnostic test (see 1.00C3) and evidenced by 1, 2, and either 3 or 4:
1. Muscle weakness; and
2. Sign(s) of nerve root irritation, tension, or compression, consistent with compromise of the affected nerve root (see 1.00F2)
3. Sensory changes evidenced by:
a. Decreased sensation; or
b. Sensory nerve deficit (abnormal sensory nerve latency) on electrodiagnostic testing; or
4. Decreased deep tendon reflexes.
AND
C. Findings on imaging (see 1.00C3) consistent with compromise of a nerve root(s) in the cervical or lumbosacral spine.
The ALJ failed to properly evaluate the tests, which were performed and noted that an imaging study in 2014 indicated only mild degenerative changes and an unremarkable lumbar spine. (Tr. 31). There was no indication that there was surgery or any other procedure performed which would have caused a disc herniation and protruding to the extent that it displaced a nerve root, to slip back into place. Insofar as the ALJ seemingly indicated that the two medical imaging tests of the lumbar spine which indicated that there was a paracentral disc displacement with impingement of the nerve root were not valid tests, she was required to obtain a medical opinion to do so.
While it is true that a consultative medical examination would not establish Bylsma's limitations during the relevant period, medical expert testimony should have been sought from a non-examining physician to review the medical record and render an opinion.
While it is in the discretion of the ALJ to determine whether medical expert testimony is warranted, see 20 C.F.R. § 404.1527(e)(2)(ii) the SSA requires an ALJ to seek a medical expert's opinion in three instances: (1) when the Council or court so orders; (2) to evaluate and interpret background medical test data; and (3) when an ALJ “is considering a finding that the claimant's impairment(s) medically equals a medical listing.” (J.A. at 117). Cooper v. Comm'r of Soc. Sec., 563 Fed. App'x 904, 910 (3d Cir. 2014).
Here, there was no medical opinion in the record which interpreted the raw data of those medical imaging studies. The ALJ was not trained to interpret the raw data and improperly failed to call an expert to render testimony.
3. We Cannot Find that the ALJ Did Not Err in Failing to Develop the Record
Bylsma argues that the ALJ erred in failing to obtain all of his medical records from the VA, in failing to obtain his arrest warrants, and in failing to assist him in questioning the vocational expert. (Doc. 15, at 14).
The Commissioner counters that the ALJ was under no obligation to assist Bylsma in questioning the vocational expert, that medical evidence is limited because Bylsma did not seek treatment, and that the ALJ agreed to obtain Bylsma's arrest record but then properly changed her mind and concluded it was not necessary. (Doc. 16, at 19-20).
This case is a difficult one, and a fair reading of the hearing transcripts reflects that the hearings which took place appeared contentious. For example, one exchange between the ALJ and Bylsma involved Bylsma's testimony that he spoke with 5 staff members of the hearing office between the first and second hearings and he submitted a release to allow them to obtain medical records from more than a dozen VA facilities. (Tr. 43-44). Bylsma testified that Ms. Stokes told him they made a mistake and did not order the records. (Tr. 45-46)
Despite the apparent difficult exchanges between the ALJ and Bylsma, it is clear from the record that Bylsma believed that the hearing office staff had ordered his medical records. (Tr. 43-44). Indeed, at the first hearing, the ALJ made a point of advising Bylsma that the hearing office could obtain his records free of charge and that he would likely be required to pay for them if he obtained them himself. (Tr. 91-92).
In closing the second hearing, the ALJ stated that she would obtain records and would send them to Bylsma to allow him to object to them. The ALJ stated further that she would need to see all of the records in order to make a fair decision. (Tr. 72-73). The clear inference was that she would be requesting his records.
Bylsma stated that he would want to get records back from Janesville, Wisconsin to know that the ALJ had all of his information.
(Tr. 73). While it is noted that 83 pages of medical records were obtained by the ALJ after the hearing, those records were all pertaining to treatment rendered at the Martinsburg VA medical center. (Tr. 332-414). There is no indication that there was medical evidence obtained from York, Pennsylvania; from Coeur D'Alene, Idaho; from Janesville, Wisconsin; or from Spokane, Washington. Moreover, there is no evidence in the record that such evidence was requested.
While it is the testimony of Bylsma that there were records to be obtained from Idaho, Wisconsin, and Washington, it was noted in the records themselves that Bylsma was treated in York. There is no question that there were additional records to be obtained from the York facility and they are not in the administrative record, nor are they noted in the exhibit list attached to the ALJ's decision. (Tr. 36-38). Here, we find that the ALJ indicated to Bylsma that she would obtain his medical records. While it appears that there was a disagreement between Bylsma and the ALJ, the record makes clear that at the conclusion of the second hearing, the ALJ advised Bylsma that she would obtain his records and he need not do so. (Tr. 72-73).
“[D]ue process requires that any hearing afforded [a Social Security disability] claimant be full and
fair.” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir.1995). This standard is violated where a claimant is deprived of the opportunity to present evidence to an ALJ in support of his or her claim, or where the ALJ exhibits bias or animus against the claimant. Ventura, 55 F.3d at 902-03 (claimant was denied a fair hearing where the ALJ acted abusive and intimidating, and interfered with the claimant's presentation of evidence supporting his claim); Hess v. Sec. of Health, Educ. and Welfare, 497 F.2d 837, 841 (3d Cir.1974) (pro se claimant was deprived of a full and fair hearing where the ALJ failed to secure readily obtainable evidence to resolve doubts about his right to disability benefits).Bordes v. Comm'r of Soc. Sec., 235 Fed. App'x 853, 857-58 (3d Cir.2007).
It is possible that the ALJ misinterpreted what Bylsma stated and believed that Bylsma would obtain the records himself. But even giving the ALJ the benefit of the doubt, the language used at the hearing leaves this Court with the impression that the ALJ would obtain the records for Bylsma. We find the failure to obtain the records prejudiced Bylsma, depriving him of a full and fair decision.
Accordingly, we recommend that the case be remanded.
4. The ALJ Erred in Failing to Include All of Bylsma's Limitations in the Hypothetical Questions to the Vocational Expert (“VE”).
Next, Bylsma argues that the ALJ failed to include all of his documented limitations in the hypothetical questions presented to the VE. (Doc. 15, at 15). Specifically, Bylsma asserts that the hypothetical questions presented to the VE failed to include his marked limitation in social functioning and instead included a somewhat piecemeal limitation which assigned him as being able to have varying amounts of contacts with different groups of individuals. Additionally, Bylsma argues that the ALJ failed to consider his inability to act appropriately. (Id.).
We find that on this issue, Bylsma also prevails.
“A hypothetical question posed to a vocational expert ‘must reflect all of a claimant's impairments.'” Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (emphasis in original) (quoting Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). “Where there exists in the record medically undisputed evidence of specific impairments not included in a hypothetical question to a vocational expert, the expert's response is not considered substantial evidence.” Id. (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984)). “A hypothetical question must reflect all of a claimant's impairments that are supported by the record; otherwise the question is deficient and the expert's answer to it cannot be considered substantial evidence.” Chrupcala, 829 F.2d at 1276 (citing Podedworny, 745 F.2d at 210.
Here, we find that the ALJ's hypothetical questions to the VE did not adequately reflect all of Bylsma's credibly established limitations. As previously stated, this Court has concluded that the ALJ erred in failing to obtain medical opinion evidence as to the severity of limitations caused by Bylsma's severe impairments. Because the ALJ erred in this regard, we find that this error infected subsequent aspects of the ALJ's analysis. Thus, we find that the ALJ erred in failing to include all of Bylsma's limitations in the hypothetical questions to the VE.
5. The ALJ Erred in Evaluating the Consistency of Bylsma's Statements With the Record.
Lastly, Bylsma argues that the ALJ erred in evaluating the consistency of his statements with the medical record. (Doc. 15, at 16). Specifically, Bylsma contends that the ALJ failed to assess his subjective complaints pursuant the guidelines under SSR 16-3p. (Id.). On this last issue, we find that Bylsma also prevails. In determining whether a claimant is disabled, the ALJ must consider all of a claimant's symptoms, including pain, and the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. § 404.1529(a). An ALJ, however, may not find a claimant disabled based on subjective symptoms alone. 20 C.F.R. §§ 404.1529(a). Rather, there must be medical signs and laboratory findings that show that a claimant has a medical impairment that could reasonably be expected to produce the pain or other symptoms alleged. (Id.). If so, the ALJ evaluates the intensity and persistence of a claimant's symptoms to determine how those symptoms limit the claimant's capacity to work. 20 C.F.R. § 404.1529(c). “In evaluating the intensity and persistence” of a claimant's symptoms, the ALJ considers “all of the available evidence, ” from “medical sources and nonmedical sources” to determine how the symptoms affect the claimant. 20 C.F.R. § 404.1529(c)(1).
Analogous to our decision on the other issues, we conclude that the ALJ's failure to properly develop the file and failure to seek the testimony of a qualified medical expert, ultimately interfered with the ALJ's evaluation and assessment of Bylsma's subjective complaints based upon the entire medical record. Essentially, we find that the ALJ was unable to make an informed judgment on the basis of the record before her. As such, we find that the ALJ erred in evaluating the consistency of Bylsma's subjective complaints.
V. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner of Social Security be VACATED and this case be REMANDED to the Commissioner for further proceedings consistent with this report.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated September 16, 2021. 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.