Opinion
Civil No. 3:18-CV-1255
07-26-2019
CHRISTINE MARIE EVANS, Plaintiff v. ANDREW SAUL, Commissioner of Social Security, Defendant
(Judge Mannion)
( ) REPORT AND RECOMMENDATION
I. Introduction
It is a cardinal principle of judicial review in Social Security appeals that "[w]hen a conflict in the evidence exists, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or for the wrong reason.' Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)." Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The instant case aptly illustrates this principle.
In this case the ALJ discounted the plaintiff's disability claim, concluding at Step 2 that Evans suffered from "no severe mental impairments" and stating unequivocally that "the claimant has not been diagnosed with nor sought or received treatment for a mental health impairment." (Tr. 40.) We find that this was the wrong reason for making this Step 2 determination since, in fact, a treating source had diagnosed Evans as suffering from chronic anxiety, and that treating physician had opined that this mental health condition was totally disabling. (Tr. 2293-2346.)
The ALJ also found that Evans could return to sedentary or light work, rejecting a medical opinion from a physician, Dr. Hawk, that she was limited to lifting five pounds with her right arm, a weight lifting restriction which would have precluded either sedentary or light work. The ALJ rejected Dr. Hawk's opinion based upon the ALJ's perception of Evans' activities of daily living, (Tr. 45), but gave no reason for neglecting to address or even acknowledge at least three other examining source opinions that had imposed similar lifting restrictions upon Evans. Thus, as to this discounted physical exertional limitation, we are provided no reason why multiple medical opinions were found unpersuasive because many of these opinions were not identified, addressed or discussed by the ALJ.
Mindful of the fact that an ALJ "cannot reject evidence for no reason or for the wrong reason," Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993), for the reasons discussed below, we conclude that these two failures of articulation taken together in the instant case compel a remand for further consideration of this case by the Commissioner.
II. Statement of Facts and of the Case
On November 19, 2014, Christine Evans applied for disability benefits pursuant to Title II of the Social Security Act, alleging that she had become totally disabled on March 27, 2013, due to the combined effects of chronic anxiety, right shoulder osteoarthritis, degenerative disc disease, and vision impairments. (Tr. 37, 39.) Evans was 50 years old at the time of the alleged onset of her disability, had at least a high school education, and had prior employment as an administrative assistant. (Tr. 45-6.)
With respect to Evans' emotional impairments, her treating physician, Dr. John Prater, opined on January 24, 2017, that Evans "has multiple medical and psychological issues that prevent her from working. These are long term and permanent conditions, as outlined in my office records." (Tr. 2346.) Those treatment records, in turn, reflected a diagnosis for Evans of chronic anxiety and treatment of Evans for that emotional condition. (Tr. 2292-2345.) A state agency expert also acknowledged that Evans suffered from a diagnosed emotional conditions, affective disorders, although the state agency expert, who had never seen or treated Evans, characterized these emotional impairments as non-severe. (Tr. 104.) For her part, Evans described these emotional impairments in far more severe terms, telling the ALJ that "I just can't sleep at night due to pain, anxiety, panic attacks, [and] depression." (Tr. 249.) Evans' description of her emotional state was entirely consistent with her treating physician, Dr. Prater's, diagnosis of chronic anxiety and her account of the severity of these impairments was wholly consistent with Dr. Prater's opinion that these emotional impairments prevented her from working.
Beyond her emotional impairments, Evans suffered from a series of physical ailments, medical conditions which manifested themselves in significant restrictions in the use of her right arm and hand. Evans described the disabling effect of this right arm condition at her ALJ hearing, (Tr. 82-98), and in correspondence which she wrote to the ALJ immediately following that hearing. (247-49.) Multiple medical opinions also confirmed that Evans was highly limited in her use of her right, non-dominant, hand.
For example, Dr. Mitchell Cooper, who conducted an independent medical examination of Evans on January 23, 2013, two months prior to her disability onset date, found that she was limited to lifting 5 pounds with her right hand. (Tr. 704, 707.) This finding was echoed by Dr. Gregor Hawk, who examined Evans in June of 2014 and opined at that time that she was limited to carrying 5 pounds. (Tr. 1304.) Two months later, Dr. Scott Sexton, who performed a second independent medical examination on August 25, 2014 likewise recommended a 5 pound right arm lifting restriction for Evans when she was lifting above her shoulder. (Tr. 852.) These findings, in turn, were consistent with the results of a functional capacity evaluation of Evans undertaken on August 27, 2014, which also found that Evans could only carry up to 7 pound with her right arm. (Tr. 603.)
It was against this medical backdrop that the ALJ held a hearing on Evans' disability application on January 31, 2017. (Tr. 82-98.) Following this hearing, on April 5, 2017, the ALJ issued a decision denying Evans' application for benefits. (Tr. 34-47.) In that decision, the ALJ first concluded that Evans met the insured status requirements of the Social Security Act through December 31, 2017 and had not engaged in any substantial gainful activity since his alleged onset date of disability on May 27, 2013. (Tr. 39.)
At Step 2 of the sequential analysis that governs Social Security cases, the ALJ found that Evans' shoulder, spinal and vision impairments were severe impairments. (Id.) In conducting this Step 2 assessment, however, the ALJ concluded that Evans suffered from "no severe mental impairments," basing this conclusion on the assertion that "the claimant has not been diagnosed with nor sought or received treatment for a mental health impairment." (Tr. 40.) This assertion was incorrect. In fact, her treating physician, Dr. John Prater, opined on January 24, 2017, that Evans "has multiple medical and psychological issues that prevent her from working. These are long term and permanent conditions, as outlined in my office records." (Tr. 2346.) Those treatment records, in turn, diagnosed Evans as suffering from chronic anxiety and treated Evans for that emotional condition. (Tr. 2292-2345.) A state agency expert also acknowledged that Evans suffered from affective disorders, although the state agency expert, who had never seen or treated Evans, characterized these emotional impairments as non-severe. (Tr. 104.) Furthermore, Evans described these emotional impairments in terms that were entirely consistent with her treating doctor's opinion and treatment records, stating that "I just can't sleep at night due to pain, anxiety, panic attacks, [and] depression." (Tr. 249.)
Having apparently made this Step 2 determination based, in part, upon a misunderstanding of the factual record concerning Evans' emotional impairments, at Step 3 the ALJ determined that none of Evans' impairments met or medically equaled the severity of one of the listed impairments. (Tr. 40.)
Between Steps 3 and 4, the ALJ then fashioned a residual functional capacity ("RFC") for Evans which found that she could perform both sedentary and light work. (Tr. 40.) This RFC required Evans to be able to lift far more than the 5 pound lifting restriction imposed by at least four medical sources since "[s]edentary work involves lifting no more than 10 pounds at a time" and "[l]ight work involves lifting no more than 20 pounds at a time." 20 C.F.R. § 404.1567(a) and (b). However, in reaching the judgment that Evans could lift between 10 and 20 pounds, the ALJ never mentioned Dr. Cooper's January 2013 opinion which restricted her to lifting 5 pounds with her right arm. The ALJ then alluded to Dr. Sexton's medical opinion, but omitted any reference to the five pound lifting restrictions set forth in that opinion. (Tr. 42.) The ALJ further mentioned the August 2014 Functional Capacity Evaluation performed on Evans, but treated this evaluation in a curious and enigmatic fashion, giving this evaluation what the ALJ described as "some weight" without noting or taking into account the 7 pound lifting restriction which the report imposed on Evans. (Tr. 42.) Indeed, the only reference to any 5 pound lifting restriction by the ALJ was a fleeting, dismissive observation when the ALJ rejected the medical opinion of Dr. Hawk that Evans was limited to lifting five pounds with her right arm. While the ALJ rejected Dr. Hawk's opinion based upon the ALJ's perception of Evans' activities of daily living, and what the ALJ described as benign medical findings, (Tr. 45), the ALJ gave no reason for neglecting to identify, address or even acknowledge at least three other examining source opinions that had imposed similar lifting restrictions upon Evans. Thus, it is unclear whether the ALJ ever recognized that multiple medical sources independently concluded that Evans suffered from a work-preclusive lifting restriction with her right arm.
Having arrived at this residual functional capacity (RFC) assessment for Evans the ALJ found at Step 4 that she could do her past work and concluded at Step 5 there were other jobs in the national economy which she could also perform. (Tr. 45-7.) Accordingly, the ALJ concluded that Evans did not meet the stringent standard for disability set by the Act and denied his disability claim. (Id.)
This appeal followed. (Doc. 1.) On appeal, Evans challenges the ALJ's incomplete analysis of her mental health impairments and inadequate consideration of the lifting restriction found by multiple medical sources, many of which the ALJ failed to even acknowledge. This case is fully briefed and is, therefore, ripe for resolution. For the reasons set forth below, we conclude that these combined failures of articulation in the instant case compel a remand for further consideration of this case by the Commissioner.
III. Discussion
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. §405(g); 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 Supreme Court has recently underscored for us the limited scope of our review in this field, noting that:
The phrase "substantial evidence" is a "term of art" used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. —, —, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains "sufficien[t] evidence" to support the
agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of "substantial" in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is "more than a mere scintilla." Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means—and means only—"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
The question before this Court, therefore, is not whether the claimant is disabled, but rather whether the Commissioner's finding that he 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 . . . .").
Several fundamental legal propositions which flow from this deferential standard of review. First, when conducting this review "we are mindful that we must not substitute our own judgment for that of the fact finder." Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford, 399 F.3d at 552). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather our task is to simply determine whether substantial evidence supported the ALJ's findings. However, we must also ascertain whether the ALJ's decision meets the burden of articulation demanded by the courts to enable informed judicial review. Simply put, "this Court requires the ALJ to set forth the reasons for his decision." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the Court of Appeals has noted on this score:
In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements . . . are insufficient. The ALJ must provide a "discussion of the evidence" and an "explanation of reasoning" for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ particular "magic" words: "Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis." Jones, 364 F.3d at 505.Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
On this score one other rule applies. When evaluating the legal sufficiency of an ALJ decision it is axiomatic that that "[w]hen a conflict in the evidence exists, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or for the wrong reason.' Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)." Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). Accordingly, we should remand for further consideration whenever the record reveals that evidence was discounted by the ALJ for the wrong reason or no reason.
Thus, in practice ours is a twofold task. We must evaluate the substance of the ALJ's decision under a deferential standard of review, but we must also give that decision careful scrutiny to ensure that the rationale for the ALJ's actions is sufficiently articulated to permit meaningful judicial review.
These principles apply with particular force to an ALJ's Step 2 determinations. Step 2 of this sequential analysis is often the first substantive benchmark an ALJ must address and is governed by familiar legal standards:
With respect to this threshold showing of a severe impairment, the showing required by law has been aptly described in the following terms: "In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a 'de minimus screening device to dispose of groundless claims.' McCrea v. Comm. of Soc. Sec.,370 F.3d 357, 360 (3d Cir.2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir.2003). 'Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.' Id." Velazquez v. Astrue, No. 07-5343, 2008 WL 4589831, *3 (E.D.Pa., Oct.15, 2008). Thus, "[t]he claimant's burden at step two is 'not an exacting one.' McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir.2004). This
step should be 'rarely utilized' to deny benefits. Id. at 361. Rather, ... [a]n individual should be denied benefits at step two only if the impairment he presents is a 'slight abnormality' that has 'no more than a minimal effect on [his] ability to work.' Id." Kinney v. Comm'r of Soc. Sec., 244 F. App'x 467, 469-70 (3d Cir.2007). Accordingly, "[d]ue to this limited function, the Commissioner's determination to deny an applicant's request for benefits at step two should be reviewed with close scrutiny." McCrea v. Commissioner of Social Sec., 370 F.3d 357, 360 (3d Cir.2004).Dotzel v. Astrue, No. 1:12-CV-1281, 2014 WL 1612508, at *4 (M.D. Pa. Apr. 22, 2014). Furthermore,
[E]ven if an ALJ erroneously determines at step two that one impairment is not "severe," the ALJ's ultimate decision may still be based on substantial evidence if the ALJ considered the effects of that impairment at steps three through five. However, where it appears that the ALJ's error at step two also influenced the ALJ's RFC analysis, the reviewing court may remand the matter to the Commissioner for further consideration. See Nosse v. Astrue, No. 08-[CV-1173, 2009 WL 2986612, *10] (W.D.Pa. Sept.17, 2009).
Stouchko v. Comm'r of Soc. Sec., No. 1:12-CV-1318, 2014 WL 888513, at *10 (M.D. Pa. Mar. 6, 2014). Simply put, "because step two is to be rarely utilized as basis for the denial of benefits, [] its invocation is certain to raise a judicial eyebrow." McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 361 (3d Cir. 2004) (citing SSR 85-28, 1995 WL 56856, at *4 ('Great care should be exercised in applying the not severe impairment concept')).
McClease v. Comm. of Soc. Sec., No. 8-CV-1673, 2009 WL 3497775, *10 (E.D. Pa. Oct. 28, 2009); see also Salles v. Comm. of Soc. Sec., 229 Fed. App'x 140, 145, n. 2 (3d Cir. 2007) (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) ("Because the ALJ found in Salles's favor at Step Two, even if he had erroneously concluded that some of her impairments were non-severe, any error was harmless.").
B. Initial Burdens of Proof , Persuasion, and Articulation for the ALJ
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 12 months." 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 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. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 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. §§404.1520(a)(4), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also assess a claimant's residual functional capacity (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. §§404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of 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. §§404.1545(a)(2), 416.945(a)(2).
There is an undeniable medical aspect to an RFC determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and have suggested that "[r]arely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant." Biller v. Acting Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held that: "There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC." Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006). Further, courts have held in cases where there is no evidence of any credible medical opinion supporting a claimant's allegations of disability that "the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided." Cummings v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015).
These seemingly discordant legal propositions can be reconciled by evaluation of the factual context of these decisions. Those cases which emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting where a well-supported medical source has opined regarding limitations which would support a disability claim, but an ALJ has rejected the medical opinion which supported a disability determination based upon a lay assessment of other evidence. In this setting, these cases simply restate the commonplace idea that medical opinions are entitled to careful consideration when making a disability determination, particularly when those opinions support a finding of disability. In contrast, when an ALJ is relying upon other evidence, such as contrasting clinical or opinion evidence or testimony regarding the claimant's activities of daily living, to fashion an RFC courts have adopted a more pragmatic view and have sustained the ALJ's exercise of independent judgment based upon all of the facts and evidence. See Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir. 2006); Cummings, 129 F. Supp. 3d at 214-15. In either event, once the ALJ has made this determination, our review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at *5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12, 2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366 (M.D. Pa. Mar. 27, 2018).
At Steps 1 through 4, 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. Mason, 994 F.2d at 1064. Once this burden has been met by the claimant, it shifts to the Commissioner at Step 5 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. §§404.1512(f), 416.912(f); 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, in order 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). Finally, it is clear that "[w]hen a conflict in the evidence exists, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or for the wrong reason.' Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)." Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999).
C. A Remand is Appropriate in this Case
Judged by these legal benchmarks, we conclude that a remand is appropriate in the instant case. We reach this conclusion mindful of the fact meaningful judicial review requires that the ALJ adequately articulate the basis for a disability finding, a task which includes two elements: An ALJ "cannot reject evidence for no reason or for the wrong reason." Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993).
In this case it appears that the ALJ's decision did not fully comply with these longstanding legal directions. In our view, this analysis was incomplete in two significant respects.
First, the ALJ discounted the plaintiff's disability claim, finding at Step 2 that Evans suffered from "no severe mental impairments" and stating unequivocally that "the claimant has not been diagnosed with nor sought or received treatment for a mental health impairment." (Tr. 40.) We conclude that this was the wrong reason for making this Step 2 determination. Simply put, the ALJ erred in claiming that Evans had not been diagnosed with a mental health impairment. In fact, her treating physician, Dr. John Prater, opined on January 24, 2017, that Evans "has multiple medical and psychological issues that prevent her from working. These are long term and permanent conditions, as outlined in my office records." (Tr. 2346.) Those treatment records, in turn, diagnosed Evans as suffering from chronic anxiety and treated Evans for that emotional condition. (Tr. 2292-2345.) A state agency expert also acknowledged that Evans suffered from affective disorders, although the state agency expert, who had never seen or treated Evans, characterized these emotional impairments as non-severe. (Tr. 104.) Furthermore, Evans described these emotional impairments in terms that were entirely consistent with her treating doctor's opinion and treatment records, stating that "I just can't sleep at night due to pain, anxiety, panic attacks, [and] depression." (Tr. 249.)
The ALJ's reliance on the wrong reason to discount these emotional impairments is particularly problematic in this case, where that determination was made at Step 2 of this sequential analysis. This error is significant for a simple reason: "[B]ecause step two is to be rarely utilized as basis for the denial of benefits, [] its invocation is certain to raise a judicial eyebrow." McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 361 (3d Cir. 2004) (citing SSR 85-28, 1995 WL 56856, at *4 ('Great care should be exercised in applying the not severe impairment concept')). Therefore, the ALJ's reliance on a factually incorrect premise at Step 2 to discount Evans' emotional impairment is an error which warrants particularly close scrutiny.
But beyond making this Step 2 determination for the wrong reason, the ALJ's RFC assessment rests on the rejection of well-documented lifting restrictions, with no reason given for discounting at least three medical opinions which confirmed those work-preclusive lifting restrictions. In this case the ALJ fashioned a residual functional capacity ("RFC") for Evans which found that she could perform both sedentary and light work. (Tr. 40.) This RFC required Evans to be able to lift far more than the 5 pound lifting restriction imposed by multiple medical sources since "[s]edentary work involves lifting no more than 10 pounds at a time" and "[l]ight work involves lifting no more than 20 pounds at a time." 20 C.F.R. § 404.1567(a) and (b). Yet, in reaching this judgment, the ALJ never mentioned Dr. Cooper's January 2013 opinion which imposed a 5 pound right arm lifting restriction on Evans; mentioned Dr. Sexton's medical opinion, but omitted any reference to the five pound lifting restrictions contained in that opinion (Tr. 42); and alluded to Evans' August 2014 Functional Capacity Evaluation in a curious manner, giving the evaluation "some weight" without noting the work-preclusive 7 pound lifting restriction set forth in that opinion. (Tr. 42.) Instead, the only reference to this thoroughly documented 5 pound lifting restriction by the ALJ was a passing. dismissive reference where the ALJ rejected the medical opinion of Dr. Hawk that Evans was limited to lifting five pounds with her right arm. The ALJ rejected Dr. Hawk's opinion based upon the ALJ's perception of Evans' activities of daily living, and what the ALJ described as benign medical findings, (Tr. 45), but gave no reason for neglecting to identify, address or even acknowledge the three other examining source opinions that had imposed similar lifting restrictions upon Evans. Thus, no reason supports critical aspects of the ALJ's analysis of Evans' right arm lifting limitations, limitations which are inconsistent with either sedentary or light work. Further, we cannot determine on this record whether the ALJ understood that four medical evaluations confirmed this lifting restriction since the ALJ failed to identify, acknowledge or analyze the lifting restrictions set forth in three of these opinions.
Taken together, we believe that these two instances in which the ALJ rejected evidence for "no reason or for the wrong reason," Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993), compel a remand of this case. Because the Court has found a basis for remand on these grounds, we need not address Spencer's remaining arguments. To the extent that any other error occurred, it may be remedied on remand. Finally, we note that nothing in this Report and Recommendation should be deemed as expressing a judgment on what the ultimate outcome of any reassessment of this evidence should be. Rather, the task should remain the duty and province of the ALJ on remand.
IV. Recommendation
Accordingly, IT IS RECOMMENDED that Spencer's request for a new administrative hearing should be GRANTED, the final decision of the Commissioner denying these claims should be vacated, and this case should be remanded to the Commissioner to conduct a new administrative hearing pursuant to sentence four of 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
The parties are further placed on notice that pursuant to Local Rule 72.3:
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.
Submitted this 26th day of July 2019.
/S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge