Opinion
3:20-cv-01189
11-24-2021
TINA SCHEUREN, Plaintiff, v. KILOLO KIJAKAZI[1], Acting Commissioner of Social Security, Defendant.
MANNION, 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 Tina Scheuren's (“Scheuren”) claim for supplemental security income under Title XVI 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
Scheuren is an adult individual born April 1, 1965, who was 51 years old at the time that she filed her application for supplemental security income-February 14, 2017. (Tr. 355). Scheuren's age at the application date makes her an “individual closely approaching advanced age” under the Social Security Act. See 20 C.F.R. § 404.963(c). In 1986, Scheuren received her GED from the Upper Dauphin Area School District and reported that from 6th to 8th grades she had attended special education classes. (Tr. 468). After completing her GED, Scheuren did not attend any training or vocational school. (Id.) Scheuren has past relevant experience working as a building material sales attendant, a position which the vocational expert testified was heavy and semi-skilled work. (Tr. 291). Scheuren stopped working on November 30, 2012, allegedly as a result of her conditions. (Tr. 467).
On February 14, 2017, Scheuren protectively filed a Title XVI application for supplemental security income benefits. (Tr. 283). In the application, Scheuren alleged disability beginning April 20, 2014. (Id.). Scheuren reported that the following impairments prevent her from being able to work: depression, anxiety, agoraphobia, post-traumatic stress disorder, panic attacks, asthma, hypothyroidism and borderline personality disorder. (Tr. 467). Scheuren's claim was denied on June 19, 2017. (Tr. 372-376). On August 24, 2017, Scheuren filed a request for an administrative hearing and it was granted. (Tr. 377-379, 380-394). Scheuren appeared and testified before Administrative Law Judge Howard Kauffman (“ALJ”) on September 18, 2018, in Harrisburg, Pennsylvania, and was represented by counsel Stephen J. Hogg, throughout the proceeding. (Tr. 283). On the day of her hearing, Scheuren amended her alleged onset date to February 14, 2017, to coincide with her date of application. (Tr. 448). Also appearing for testimony was vocational expert Lori Cowan. (Id.). At the time of the hearing, Scheuren was 53 years old and resided in Loysville, Pennsylvania, which is in the Middle District of Pennsylvania. (Tr. 433). At the time of the hearing, Scheuren's attorney notified the ALJ that there was evidence in the form of medical records outstanding and requested that the record remain open for 14 days for him to submit the evidence. (Tr. 301-302). The ALJ granted his request. (Tr. 302). On September 20, 2018, Scheuren's attorney notified the ALJ that all medical evidence had been submitted and the record was complete. (Tr. 525). At the time, the medical record in the case stood at 191 pages. (Tr. 526-714).
In a written decision dated January 30, 2019, the ALJ denied Scheuren's application for benefits. (Tr. 280-297). Scheuren sought further review of her claim by the Appeals Council of the Office of Disability Adjudication and Review, but her request was denied for review on June 5, 2020. (Tr. 1-7). At the time that Scheuren filed her appeal to the Appeals Council, she filed an additional 266 pages of medical records pertaining to medical care received in the period of April 9, 2019 through March 3, 2020. (Tr. 8-274).
Scheuren subsequently filed an appeal to this court on July 13, 2020, arguing that the ALJ's decision was not supported by substantial evidence. (Doc. 1). On January 15, 2021, 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. 14, at 3). This matter has been fully briefed by the parties and is ripe for decision. (Doc. 16; Doc. 17; Doc. 18).
Scheuren is a 56-year-old woman who was widowed in 2009, remarried the same year and subsequently divorced after filing her claim for benefits. (Tr. 559). At ¶ 2013 psychiatric evaluation, Scheuren reported that she is a former alcoholic who was raised in an abusive home by an alcoholic father. (Tr. 560). She reported that she left high school one week before graduation and then obtained a GED after. (Id.). Scheuren stopped working in November of 2012, alleging that she became too overwhelmed to work. (Tr. 467).
Scheuren has a very sporadic and limited work history with 16 years prior to the year she alleged onset that she has no or almost no earnings. (Tr. 444-45). She has only earned at an SGA level for 2 years- 2006 and 2007. (Tr. 444).
In her disability appeals report, Scheuren wrote that she stopped working in 2012. (Tr. 467). In her adult function report filed in April of 2017, Scheuren stated that she lived with family and that her disability consisted of “get very depressed, can't sleep, don't care to be around people. I get real mad easy and panic easy. Have anger issues. Can't think straight.” (Tr. 475). She stated that she makes sandwiches and microwaves meals once a week and will sweep the floors and wash dishes and do laundry once a week. (Tr. 477). She stated that her adult children have to tell her to get up and do things. (Id.). She further stated that she does not go out alone because she thinks people are looking at her and she will shop once a week, but she will not go into the store if there are a lot of people. (Tr. 478). Scheuren said that she interacts only with her two children, one friend on the phone, and her psychologist once a week. (Tr. 479). She also wrote that she has problems getting along with others, can only walk for 2 blocks due to asthma, and has problems with concentration and memory. (Tr. 480). Scheuren said that she can follow written instructions well and spoken instructions “at least okay.” (Id.) Scheuren stated that she was seeking a new psychiatrist because her former psychiatrist left the area and the replacement was not as helpful. (Tr. 482).
At the hearing, Scheuren testified that she began to suffer from post-traumatic stress disorder after watching her first husband, her mother, and then her father die in front of her within a short period. (Tr. 307). Scheuren testified that she had nightmares every night and then began to experience flashbacks during the day about four times a week. (Tr. 308). During a flashback she would be crying for five to ten minutes and would then need an hour to calm down. (Id.). After her husband died, Scheuren worked in a diner. (Tr. 310). She testified that she left after arguing with the owner. (Tr. 314). Scheuren explained that she was having panic attacks during which she could not breathe, she became nauseous, and she was dizzy. (Tr. 310). Additionally, she stated that she had asthma, but she did not use an inhaler very often. (Tr. 312). Scheuren testified that she has agoraphobia and does not like being around other people. (Tr. 314). She stated that she must be accompanied to the store and will not go in if it is crowded. (Id.). Scheuren testified that she cannot go to medical appointments alone and cannot drive past the end of her own driveway alone. (Tr. 316). Scheuren further testified that when she had a flashback, she would need to calm herself for up to an hour. (Tr. 318). Scheuren stated that she lost one job because of the breaks she needed to take after panic attacks. (Tr. 319). Scheuren testified as well that in the past she had to leave the doctor's office because she could not wait in the waiting room, but that her present psychologist did not make her wait in the waiting room. (Tr. 321).
As for the objective medical evidence, on December 18, 2013, Scheuren was seen at The Stevens Center for psychiatric evaluation by Henry Wehman, M.D. (“Dr. Wehman”). (Tr. 559). She was referred by her primary doctor who told her she had bipolar disorder despite no manic symptoms. (Id.). She described difficulty getting along with family members and told Dr. Wehman that she lived with her two adult sons and husband but that she hated her husband. (Tr. 559). Scheuren stated that her husband of 22 years died in 2009, and she remarried 4 months later on impulse. (Id.). Scheuren said that her mother died in December of 2012 and her father was then in a nursing home with cancer and dementia. (Id.). Scheuren described no past psychiatric care but stated that she was prescribed lorazepam by a family doctor after her first husband's death. (Id.). Scheuren described herself as a poor student with D and F grades and said that she left school one week before graduation, but later she obtained a GED. (Tr. 560). She also reported that she was raised by an abusive alcoholic father. (Id.). Scheuren was diagnosed with major depressive disorder, severe without psychotic features; posttraumatic stress disorder with agoraphobia; and a rule out diagnosis of borderline personality disorder. (Tr. 561). Scheuren was assigned a GAF score of 50. (Id.). On August 3, 2015, a diagnosis update form indicated that borderline personality disorder was confirmed as a diagnosis. (Tr. 562).
Medication management notes indicate that Scheuren saw Dr. Wehman five times in 2015, four times in 2016, and six times in 2014. (Tr. 564-65). In February of 2016, Dr. Wehman changed Scheuren's medication to include the anti-psychotic drug Haldol 1 mg. (Tr. 564). In September of 2016, Dr. Wehman found that Scheuren was stable on medication but still unable to work. (Tr. 571.) In December of 2016, Dr. Wehman found that Scheuren was stable on medication with no hallucinations, intact cognitive functioning and euthymic mood. (Tr. 570). On April 3, 2017, Dr. Wehman found that there was worsening PTSD. (Tr. 567).
In July of 2015, Dr. Wehman rendered a medical source statement in which he stated that he had treated Scheuren since 2013 and opined that Scheuren had no limitation in her ability to understand, remember and carry out instructions, but she was extremely limited in her ability to interact appropriately with supervisors, coworkers, and the public based upon her history and presentation. (Tr. 602-604). Dr. Wehman indicated on April 1, 2016 and on September 12, 2016 that her limitations had not changed. (Tr. 604).
On three occasions in 2016, Scheuren was seen at Family Practice Center. On January 8, 2016, she was seen for flank pain and incontinence. On October 19, 2016, she was seen for a cough and congestion. On December 28, 2016, she was seen for a knee injury.
On June 7, 2017, Scheuren was examined at the request of the Commissioner by Spencer Long, M.D. (“Dr. Long”). At the time of the examination, Scheuren was 52 years old. Scheuren reported that she had asthma and needed to use a nebulizer once a year. (Tr. 586). Dr. Long noted that Scheuren needed no assistive device and reported that she smoked a pack of cigarettes per day. (Id.). She reported that she did not live alone, she was able to take care of herself, and she did light cooking, cleaning, and shopping with help. (Id.). Scheuren had a normal gait and was able to squat fully. (Tr. 587). Dr. Long found that Scheuren's chest and lungs were within normal limits and her abdomen was soft and nontender with normal bowel sounds. (Tr. 588). A pulmonary function test showed normal spirometry. (Id.). Dr. Long diagnosed Scheuren with asthma. (Id.). Dr. Long opined that Scheuren could lift and carry up to 50 pounds occasionally and up to 20 pounds frequently. (Tr. 592). He further opined that she could sit for 3 hours without interruption, stand for 2 hours without interruption and walk for 4 hours without interruption, but then opined she could sit for 8 hours and walk for 60 minutes in an average day. (Tr. 593). It was Dr. Long's opinion that Scheuren could frequently use both hands for reaching, handling, fingering, feeling, and pushing. (Tr. 594). Additionally, he opined that she could frequently use both feet to operate foot controls. (Tr. 595). It was Dr. Long's opinion that Scheuren could occasionally climb stairs and ramps; never climb ladders or scaffolds; and frequently balance, stoop, kneel, crouch, and crawl. (Tr. 595). He opined further that she can never be exposed to dust, odors, fumes, or cold; she can occasionally be exposed to unprotected heights, extreme heat, and vibration; and she can be frequently exposed to moving mechanical parts, humidity and wetness, and she can operate a motor vehicle. (Tr. 596.) Lastly, Dr. Long opined that Scheuren could travel without a companion for assistance and she could not use public transportation. (Tr. 597).
In August of 2017, Scheuren was seen at Youth Advocate Programs by Raymond Johnson, M.D. (“Dr. Johnson”). (Tr. 599). She was prescribed Seroquel, Topomax, and Xanax, and she was diagnosed with Bipolar II disorder, as well as agoraphobia with panic disorder. (Tr. 599). On October 11, 2017, Dr. Johnson added Prazosin to Scheuren's list of medications. (Tr. 637).
On July 9, 2018, Dr. Johnson completed a medical source statement. (Tr. 690-94). Dr. Johnson rendered opinions with regard to categories. Category I indicated that performance was not precluded in this area. Category II indicated that performance would be precluded for 1-10% of the workday. Category III indicated that performance would be precluded for 10-15% of a workday. Lastly, category IV indicated that performance would be precluded for more than 15% of a workday. Dr. Johnson opined that Scheuren functioning in Category I only in the area of maintaining socially appropriate behavior and adhering to neatness and cleanliness. (Tr. 692). Dr. Johnson opined that Scheuren was limited to Category II with regard to remembering locations and work-like procedures. (Tr. 691). Dr. Johnson opined that Scheuren's limitations fell into Category III with regard to understanding and remembering short simple instructions; carrying out short and simple instructions; carrying out detailed instructions; interacting with the public; getting along with coworkers without districting them; and responding appropriately to work changes. Dr. Johnson opined that Scheuren's limitations would fall into category IV with regard to understanding and remembering detailed instructions; maintaining attention and concentration for extended periods; performing activities within a schedule, maintaining attendance, and being punctual and within customary tolerances; sustaining a routine without special supervision; working in coordination with others; completing a normal workday without interruption, and performing at a consistent pace; and in asking simple questions or asking for assistance. (Tr. 690-692). Dr. Johnson opined that Scheuren would be off task a combined total of 30% or more in an average day, would be absent more than 5 days a month, and would be unable to complete an 8-hour day more than 5 days per month. (Tr. 693).
On July 23, 2018 Sarah Kimber, LSW, Outpatient Therapist, completed the same medical source statement and opined that Scheuren had identical limitations with regard to the 4 categories. (Tr. 697-700).
On August 7, 2018, Ms. Kimber also provided a narrative letter regarding Scheuren. She stated that Scheuren has been in individual therapy since April 2017. Ms. Kimber noted that while Scheuren showed improvement in some areas, her anxiety symptoms were increasing and she was experiencing a “fight or flight” response during panic attacks which would make it necessary for her to excuse herself from situations in which she needed to avoid a panic attack or emotional response. (Tr. 702).
On August 23, 2018, Scheuren was admitted to Geisinger Holy Spirit Hospital and was discharged on August 27, 2018, with a diagnosis of diverticulitis of the sigmoid colon. (Tr. 708). It was noted that Scheuren presented to the emergency department with abdominal pain for three days. (Tr. 709). A CT performed on August 23, 2018, indicated sigmoid diverticulitis, enhancing fluid collection within the wall of the sigmoid colon which was likely a intra-wall abscess and no focal perforation identified.
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); id. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a); id. § 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); id. § 1382c(a)(3)(B); 20 C.F.R. § 404.1505(a); id. § 416.905(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); id. § 1382c(a)(3)(D).
“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; id. § 416.910.
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); id. § 416.920(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); id. § 416.920(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); id. § 1382c(a)(3)(H)(i); 20 C.F.R. § 404.1512; id. § 416.912; 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); id. § 416.912(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); id. § 416.945(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); id. § 416.945(a)(2).
III. Discussion
In his January 30, 2019, decision denying Scheuren's claim, the ALJ evaluated Scheuren's application for benefits at each step of the sequential process. At step one, the ALJ found that Scheuren had not engaged in substantial gainful activity since February 14, 2017, which is both her application date and her amended onset date in the Title XVI claim. (Tr. 285). At step two, the ALJ found that the following impairments were medically determinable and severe during the relevant period: depression, anxiety, and personality disorder. (Id.). Additionally, the ALJ found that Scheuren had the non-severe impairments of asthma and diverticulitis. (Tr. 285-86). At step three, the ALJ found that Scheuren 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 and specifically considered Listings 12.04, 12.06 and 12.08. (Tr. 286-87).
Between steps three and four, the ALJ assessed Scheuren's RFC. The ALJ found that Scheuren had the capacity to perform a full range of work at all exertional levels with additional limitations. (Tr. 287). The ALJ fashioned the following RFC:
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all additional levels but with the following non-exertional limitations: The claimant retains the mental capacity to perform simple, routine and
repetitive tasks. The claimant can have no interaction with the public; incidental interaction with co-workers and occasional interaction with supervisors.(Id.).
At step four, the ALJ found that Scheuren was unable to perform any past relevant work as a building materials sales attendant. (Tr. 291). At step five, the ALJ determined based on Scheuren's age, education, work experience, and RFC, that there were a significant number of jobs in the national economy that Scheuren could perform, including working as a kitchen helper/dishwasher, sandwich-maker, laundry folder and laundry press operator. (Tr. 291-92). Scheuren contends that the decision of the ALJ is not supported by substantial evidence in the record and raises issues on appeal attacking various aspects of the ALJ's decision.
a. The ALJ Did Not Err in Failing to Order a Consultative Psychological Evaluation or an Updated Medical Evaluation.
On appeal, Scheuren argues that the ALJ erred by failing to order either a consultative psychological evaluation or an updated consultative medical evaluation. (Doc. 16, at 14). We find her arguments unpersuasive as to this issue.
1. The ALJ Did Not Err in Failing to Order an Updated Physical Consultative Examination
Scheuren asserts that the ALJ erred in failing to order that a physical consultative examination be performed to assess any limitations which might have been caused by diverticulitis following her hospitalization in August of 2018. (Doc. 16, at 14-16). The Commissioner countered that the ALJ did not err because the evidence available at the time of the hearing indicated that the condition did not meet the durational requirements of twelve months pursuant to 20 CFR 416.920(a)(4)(ii). (Doc. 17, at 8-10). Scheuren responded in her reply brief that post-decision evidence showed that in April of 2019, she suffered a relapse of diverticulitis and was once again hospitalized, requiring surgery. (Doc. 18, at 1-2).
We find that the Commissioner is more persuasive in his argument that the ALJ's decision was supported by the medical evidence of record in the file as of the date that the decision was rendered which indicated that the condition did not meet the durational requirement.
As the Commissioner noted, the medical evidence of record showed that Scheuren suffered an acute episode of diverticulitis in August of 2018, but she quickly improved with conservative care and was released from the hospital in four days in stable condition. (Doc. 17, at 9; Tr. 711).
While later records show that Scheuren suffered a relapse of diverticulitis seven months later and subsequently required surgery, there is no evidence that Scheuren suffered any pain or limitation due to the condition in the intervening seven months. Scheuren has offered no evidence that she was limited in any way by diverticulitis between her brief hospitalization in August of 2018 and her subsequent hospitalization in April 2019. Most significantly, at the time of the hearing and at the time that the decision was rendered there was no additional evidence which would indicate that the condition was severe or that the condition limited Scheuren in any way. It well-settled that evidence which was not before the ALJ cannot be used after the fact to support an argument that the ALJ's decision was not supported by substantial evidence barring a showing of good cause. Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001) .
Additionally, as noted above, Scheuren identifies no evidence which creates a nexus between the episode of August 2018 and the episode of April 2019, which occurred after seven months during which she was apparently asymptomatic. If in fact Scheuren's condition was symptomatic after her release from the hospital, she had a duty to obtain records indicating so or to properly identify them to the ALJ and the record reflects that she did neither. Indeed, nearly two months after her release from the hospital for diverticulitis Scheuren advised the ALJ that all relevant medical evidence had been submitted and that not additional medical evidence was outstanding. (Tr. 525).
For these reasons, we cannot find that the ALJ erred in failing to order an updated physical consultative examination regarding Scheuren's diverticulitis, as all evidence before the ALJ indicated that as of the time the decision was rendered the effects of that condition was brief and had resolved with conservative care.
2. The ALJ Did Not Err in Failing to Order a Psychological Consultative Examination
Scheuren argues additionally that the ALJ erred in failing to order a consultative psychological examination because the evaluation performed by the state agency analyst was performed in 2017, and was stale by the time of the hearing. (Doc. 16, at 16-17). Thus, assuming that Scheuren is arguing that the ALJ should have requested a consultative examination, we accept the position put forth by the Commissioner with regard to consultative examinations in general that the ALJ has discretion in deciding whether to procure a consultative examination. (Doc. 17, at 10).
We find that in this instance the Commissioner's position is the correct one. Scheuren offers no argument as to why a consultative examination would be required other than the fact that the state agency physician reviewed her file in April of 2017, close to the time that she applied for benefits. (Doc. 16, at 16). She fails to consider the fact that there are three other medical opinions in the file, with two from acceptable medical sources who were psychiatrists and a third from a licensed clinical social worker.
While we might find issue with the manner in which the ALJ weighed those opinions later in this decision, we cannot find that there was an absence of medical evidence upon which the ALJ could base his decision. As such, there was little need for the ALJ to send Scheuren for a one-time examination when an opinion had been rendered by an acceptable medical source who had examined Scheuren within several months before the hearing.
While an ALJ is required to assist the claimant in developing a full record, he or she has no such obligation to ‘make a case' for every claimant. The decision to order a consultative examination is within the
sound discretion of the ALJ. Under the regulations, the Commissioner “may” request a claimant to attend a consultative examination. 20 C.F.R. §§ 404.1512, 416.912. The regulations authorize the ALJ to obtain a consultative examination if there remains information needed to make a disability determination, “such as clinical findings, laboratory tests, a diagnosis or a prognosis” which cannot be obtained from the medical record. 20 C.F.R. §§ 404.1519a, 416.919a. Such an examination may be requested when the Commissioner is not presented with the information that is necessary to make a decision or is presented with inconsistent information.20 C.F.R. §§ 404.1519a(a)-(b), 416.919a(a)-(b). Dietrich v. Saul, 501 F.Supp.3d 283, 293 (M.D. Pa. 2020)(citations omitted).
As there were opinions in the file from no less than 3 acceptable medical sources, we cannot find that the ALJ was required to send Scheuren for a consultative examination to obtain a fourth.
b. The ALJ Erred in Failing to Give Controlling Weight to the Opinions of Dr. Wehman and Dr. Johnson
Scheuren contends that the ALJ erred when he failed to give controlling weight to the opinions of Dr. Wehman and Dr. Johnson. (Doc. 16, at 17). In particular, Scheuren argues that if the ALJ did not afford controlling weight to the opinions of her treating psychiatrists, he was obligated to consider seven factors set forth in 20 C.F.R. § 416.927. (Id.) The Commissioner argues that the ALJ fulfilled his duty to independently weight the opinions of the two physicians and that the ALJ's explanation that they were conflicting was sufficient to meet the standard. (Doc. 17, at 13). Scheuren countered in her reply brief that the opinions were only partially inconsistent and that they differed due to a worsening of Scheuren's condition. (Doc. 18, at 2-3). With regard to this issue, we find that Scheuren has the more persuasive argument.
It is of note that this case was filed prior to March 27, 2017, and this the regulations found at 20 C.F.R. § 404.927, also known as “the treating physician rule” apply in this matter. While the ALJ's consideration of the medical opinions in this case might not have warranted remand if the case had been filed after March 27, 2017, when new rules were in place, we cannot find that the ALJ's explanation satisfied the more stringent standards set forth pursuant to 20 C.F.R. § 404.927.
The ALJ is charged with a duty to evaluate all the medical opinions in the record under the factors set forth in the regulations and to resolve any conflicts. 20 C.F.R. § 404.927. An ALJ may give an opinion less weight or no weight if it does not present relevant evidence or a sufficient explanation to support it, or if it is inconsistent with the record as a whole. Id. The weight that the ALJ gives to a medical opinion is based on a number of factors, including the length of the treatment relationship and the frequency of examination, the nature and the extent of the treatment relationship, the extent to which the opinion is supported by relevant evidence, the opinion's consistency with the record as a whole, the extent to which the opinion relates to the medical source's specialty, and any other factors tending to support or contradict the opinion. Id. The ALJ may choose which medical evidence to credit and which to reject as long as there is a rational basis for the decision. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). An ALJ cannot disregard a medical opinion “based solely on his own ‘amorphous impressions, gleaned from the record and from his evaluation of the claimant's credibility.'” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (internal alterations omitted) (citing Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983)). Further, it is axiomatic that an 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).
Here, we find that the ALJ's decision to afford limited weight to the opinions of Dr. Wehman and Dr. Johnson was not supported by substantial evidence.
On September 12, 2016, five months prior to the amended onset date, Dr. Wehman rendered a medical source statement in which he stated that he had treated Scheuren since 2013 and opined that Scheuren had no limitation in her ability to understand, remember, and carry out instructions, but she had extreme limitations in her ability to interact appropriately with supervisors, coworkers, and the public based upon her history and presentation. (Tr. 602-04). Dr. Wehman also opined that Scheuren would have an extreme limitation in her ability to changes in a work setting. (Tr. 603). The ALJ, however, afforded little weight to Dr. Wehman's opinion, explaining that Scheuren was able to spend time with her children and one friend, she was able to attend psychiatrist appointments every week, and she was able to shop in stores once a week. (Tr. 290). The ALJ additionally made the finding that “the evidence of record supports a conclusion that the claimant's mental impairments are controlled with medication and treatment.” (Tr. 290-91).
Recently, we summarized the controlling legal benchmarks in this area in the following terms:
Under applicable regulations and the law of the Third Circuit, a treating medical source's opinions are
generally entitled to controlling weight, or at least substantial weight. Oftentimes referred to as the “treating physician rule”, this principle is codified at 20 CFR 404.1527(c)(2), and is widely accepted in the Third Circuit. The regulations also address the weight to be given a treating source's opinion: “If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case, we will give it controlling weight.” 20 CFR § 404.1527(c)(2). A cardinal principle guiding disability, eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially when their opinions reflect expert judgment based on continuing observation of the patient's condition over a prolonged period of time. In choosing to reject the treating physicians assessment, an ALJ may not make speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation, or lay opinion.Morder v. Colvin, No.: 3:16-CV-213, 2016 WL 619892, at *10 (M.D. Pa. Oct. 24, 2016) (citations omitted).
Here, there is no opinion which is countervailing nor has the ALJ cited any specific medical evidence to support his own finding that Scheuren's condition was controlled by medication. As such, the ALJ's statement that Scheuren's condition was controlled with medication amounts to the type of “speculative inference” prohibited pursuant to Morales. Moreover, we cannot find that the ALJ properly considered the lengthy treatment relationship between Dr. Wehman and Scheuren or Dr. Wehman's expertise as a psychiatrist.
“Where a conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or the wrong reason.'” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)(quoting Mason, 994 F.2d at 1066)); see also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). Therefore, the failure on the part of an ALJ to fully articulate a rationale for rejecting the opinion of a treating source may compel a remand for further development and analysis of the record.
The Commissioner contends that the ALJ explained his reasoning adequately by stating that Scheuren was able to cook, clean and shop, to interact with her children and to attend therapy. (Doc. 17, at 15). The Commissioner cites to Stancavage v. Saul, 469 F.Supp.3d 311, 333 (M.D. Pa. 2020) in support of his contention that an ALJ may properly give limited weight to the opinions of a treating source if they stand in contrast to a record reflecting that the plaintiff has engaged in a wide range of daily activities.
We believe that the Commissioner's reliance on Stancavage is misplaced, as the facts of the present case are substantially dissimilar. In Stancavage, the court noted that the plaintiff had engaged in a broad range of activities which included attending college to obtain both a bachelor's degree and master's degree, going to the gym three days a week, and traveling alone. (Id.). By contrast, it was the testimony of Scheuren that she never left home alone and she did not shop alone. (Tr. 314, 316). Moreover, it is unreasonable to equate the fact that Scheuren could relate to her own two adult children as well as her psychiatrist, who is a licensed professional specially trained to interact with mentally ill clients, with the ability of the plaintiff in Stancavage to attend college classes full-time and interact with the general public on a daily basis.
For these reasons, we cannot find the ALJ has adequately explained his reasoning in rejecting Dr. Wehman's opinions. Accordingly, we recommend that the case be remanded.
We find further that the ALJ's explanation is equally deficient with regard to the weight assigned Dr. Johnson's opinions. In July of 2018, Dr. Johnson opined that Scheuren would be precluded for 10-15% of an average day with regard to understanding and remembering short simple instructions; carrying out short and simple instructions; carrying out detailed instructions; interacting with the public; getting along with coworkers without distracting them; and responding appropriately to work changes. (Tr. 690-92). Dr. Johnson further opined that Scheuren would be precluded for more than 15% of the day with regard to understanding and remembering detailed instructions; maintaining attention and concentration for extended periods; performing activities within a schedule, maintaining attendance, and being punctual and within customary tolerances; sustaining a routine without special supervision; working in coordination with others; completing a normal workday without interruption, and performing at a consistent pace; and in asking simple questions or asking for assistance. (Id.). Dr. Johnson further opined that Scheuren would be off task a combined total of 30% or more in an average day, she would be absent more than 5 days a month, and she would be unable to complete an 8-hour day more than 5 days per month. (Tr. 693.)
The ALJ did not address all of Dr. Johnson's opinions and addressed only Dr. Johnson's findings that Scheuren would be off task for more than 30% of an average day and absent more than 5 days per month. (Tr. 291). The ALJ gave Dr. Johnson's opinions “little weight, ” stating that “I find that the claimant's mental symptoms are less severe than Dr. Johnson found them to be, as they are no more than moderate.” (Id.).
In affording little weight to the opinion of Dr. Johnson, the ALJ made a conclusory finding that he found them to be less severe than those which Dr. Johnson opined. (Tr. 291). The ALJ, however, did not cite to any evidence in the record to support his conclusion. (Id.).
Given this sparse explanation and the complete absence of citations to evidence in the record that supports his decision, the ALJ's assignment of little weight to the opinion of Dr. Johnson, seems to have been based on nothing more than his own “amorphous impressions” of the record. Again, we note that this is improper given the ruling of Morales v Apfel, 225 F.3d at 318; see also Cole v. Berryhill, No. 3:18-CV-01132, 2019 WL 2724785, at *6 (M.D. Pa. June 4, 2019) (finding that ALJ's assignment of little weight to treating physician's opinion was not supported by substantial evidence where ALJ did not cite to the record in explaining the assignment of weight), report and recommendation adopted, No. 3:18-CV-01132, 2019 WL 2745836, at *1 (M.D. Pa. June 28, 2019).
The ALJ's failure to adequately explain his reasoning in giving less than significant or controlling weight to the opinions of the treating physicians, we find that the ALJ's decision is not supported by substantial evidence.
As we recommend that the matter be remanded, we will not address Scheuren's remaining assignments of error.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner of Social Security be REMANDED and that Scheuren's request for remand for a new administrative hearing be GRANTED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated November 24, 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.