Opinion
Civil No. 3:18-CV-1214
06-03-2019
RAYMOND SLOTCAVAGE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
For Administrative Law Judges (ALJs), Social Security disability determinations frequently entail an informed assessment of medical opinions coupled with an evaluation of the severity of a claimant's impairments. The ALJ performs this task against the backdrop of a well-defined analytical paradigm. As part of this analysis, ALJ's are cautioned that great weight should be given to medical treating source opinions, and ALJ's should refrain from rejecting all medical opinions in favor of their own lay interpretation of medical evidence. ALJs are also instructed that the threshold severity inquiry regarding a claimant's impairments is a "de minimus screening device to dispose of groundless claims." McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); Newell v. Comm'r 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." Velazquez v. Astrue, No. 07-5343, 2008 WL 4589831, *3 (E.D. Pa. Oct. 15, 2008) (quoting McCrea, 370 F.3d at 360) (internal quotations omitted)). Thus, "[t]he claimant's burden at step two is 'not an exacting one.'" McCrea, 370 F.3d at 360 (internal citations omitted).
Once the ALJ completes this task, on appeal it is the duty and responsibility of the district court to review these ALJ findings. In this case we are called upon to determine whether substantial evidence supported an ALJ's determination that Raymond Slotcavage could perform a range of light work, and accordingly, was not disabled. The ALJ made this determination after discounting the two medical opinions in the record—opinions from treating and consulting sources, both of whom placed greater limitations on Slotcavage than those found by the ALJ. Further, the ALJ reached this decision after concluding that Slotcavage's diagnosis of herniated discs was not a severe impairment, even though Slotcavage's treating physician deemed this impairment to be disabling.
After a review of the administrative record, we find that the ALJ's decision to exceed all of the medical source opinions in this case, coupled with the decision to treat Slotcavage's herniated discs as a non-severe impairment, are not adequately explained and supported. Thus, we recommend that the case be remanded for further consideration of this claim.
II. Statement and Facts of the Case
On October 30, 2014, Raymond Slotcavage applied for disability benefits under Title II of the Social Security Act. (Tr. 52.) At the time of this disability application, Slotcavage was 50 years old. (Id.) He had a high school education and a past employment history as a construction laborer, heavy-duty semiskilled work. (Tr. 68.)
Slotcavage alleged that he had become disabled due to a cascading array of physical and emotional impairments, including arthritis, bursitis, Crohn's disease, carpel tunnel syndrome, depression, and herniated discs. (Tr. 54-55.) With respect to this last impairment—Slotcavage's herniated disc—medical records provided by Dr. Raymond Kraynak, Slotcavage's treating physician, indicate that on March 27, 2012, Slotcavage was seen by the doctor for this back injury. At that time, Dr. Kraynak noted that "diagnostic studies showed a herniated disc at L-4/5 and L-5/S-1." (Tr. 1012.) Over the next two years, from March 2012 through March 2014, Dr. Kraynak consistently diagnosed Slotcavage as suffering from herniated discs. Dr. Kraynak's treatment notes also repeatedly observed that Slotcavage was "unable to work" and was "totally disabled" due to these injuries. (Tr. 1002-05, 1010-11.)
Tr. 967, 969, 971, 973, 975, 977, 979, 981, 983, 985, 987, 989, 991, 993, 995, 997, 999, 1001, 1009-11.
Given this diagnosis and treatment history, Dr. Kraynak twice opined that Slotcavage was disabled due to these herniated discs. Initially, on February 10, 2015, Dr. Kraynak reported that Slotcavage had been under his care for a herniated lumbar disc "for some time," and stated that these lumbar impairments, coupled with Slotcavage's Crohn's disease, hypertension, and depression, "render him totally disabled from any and all employment." (Tr. 341.) Two years later, in March of 2017, Dr. Kraynak issued a second medical opinion, which concluded that Slotcavage could lift and carry less than 10 pounds, and sit or stand for less than 2 hours a day. (Tr. 1042-44.) According to Dr. Kraynak, due to his impairments, Slotcavage could never twist, stoop, crouch, or climb stairs and ladder. (Id.) Dr. Kraynak also indicated that Slotcavage could be expected to be absent from work more than 3 days each month due to his impairments. (Id.)
A second medical source, Dr. Jay Willner, examined Slotcavage in April of 2015. (Tr. 343-57.) While this consultative examination report found that Slotcavage was capable of performing lifting and carrying consistent with light work, it also concluded that he was significantly restricted in performing a range of activities, such as traveling without assistance, walking distances, or shopping. (Id.) In addition, Dr. Willner found that Slotcavage could never climb ladders, kneel, crouch or crawl and could only occasionally stoop or climb stairs. (Tr. 350.)
Slotcavage's initial claim for benefits was denied on May 6, 2015. (Tr. 52.) He then requested a hearing, which was held on March 31, 2017. At this hearing, the plaintiff amended his onset date to June 19, 2013, his 50th birthday, and Slotcavage and a vocational expert ("VE") both testified, describing his impairments and employment prospects. (Tr. 104-163.)
On April 24, 2017, the ALJ issued a decision denying Slotcavage's application for benefits. (Tr. 49-70.) In this decision, the ALJ initially found that the plaintiff met the insured status requirements through December 31, 2016. (Tr. 54.) At Step 2 of the sequential analysis that governs Social Security cases, the ALJ found that Slotcavage's severe impairment included arthritis, bursitis, Crohn's disease, and carpel tunnel syndrome. (Tr. 54-55.) However, the ALJ found that Slotcavage's herniated discs were not a severe impairment at Step 2, concluding that these impairments were not "expected to cause any significant ongoing functional limitations for a continuous period of at least 12-consecutive months since the amended onset date." (Tr. 55.) Thus, the ALJ's Step 2 analysis completely discounted the diagnosis, treatment records, and opinion of Dr. Kraynak, who stated on March 27, 2012, that "diagnostic studies showed a herniated disc at L-4/5 and L-5/S-1" (Tr. 1012), and over the next two years consistently diagnosed Slotcavage as suffering from herniated discs, while also frequently observing that Slotcavage was "unable to work" and was "totally disabled" due to these injuries. (Tr. 1002-1005, 1010-11.) Notably, this Step 2 determination seemed to be based upon the ALJ's subjective evaluation of the doctor's credibility. Thus, while Dr. Kraynak stated in his treatment notes that "diagnostic studies showed a herniated disc at L-4/5 and L-5/S-1," (Tr. 1012), the ALJ appeared to openly doubt this assertion, stating that the doctor's diagnosis "is not supported by ANY diagnostic radiological study." (Tr. 55.) Simply put, given that Dr. Kraynak had stated that "diagnostic studies showed a herniated disc at L-4/5 and L-5/S-1," (Tr. 1012), the ALJ's finding was tantamount to a declaration that the doctor's statements were unsupported and untrue.
Tr. 967, 969, 971, 973, 975, 977, 979, 981, 983, 985, 987, 989, 991, 993, 995, 997, 999, 1001, 1009-11.
Having discounted this disc herniation as a severe impairment at Step 2, the ALJ went on to conclude at Step 3 that Slotcavage did not have an impairment that met or medically equaled a listed impairment. (Tr. 57-58.)
Between Steps 3 and 4, the ALJ fashioned a residual functional capacity ("RFC"), for Slotcavage, concluding that he could perform light work and occasionally climb stairs and ladders, balance, stoop, kneel, crouch, and crawl. (Tr. 58.) By prescribing this RFC for Slotcavage, the ALJ was setting exertional standards that exceeded those found by every doctor who had examined or treated the plaintiff. This RFC far exceeded the limitations prescribed twice by Dr. Kraynak, Slotcavage's treating physician, who concluded that Slotcavage was totally disabled due to his back problems and related ailments. (Tr. 241, 1042-44.) Moreover, notably this RFC also exceeded the physical limitations described by the consulting examining physician, Dr. Willner, who found that Slotcavage could never climb ladders, kneel, crouch, or crawl and could only occasionally stoop or climb stairs. (Tr. 350.) In rejecting portions of Dr. Willner's opinion, the ALJ stated that, in his opinion "many of Dr. Willner's noted limitations are actually too restrictive . . . ." (Tr. 62.)
Having completely discounted Slotcavage's herniated discs as a severe impairment at Step 2, then having completely discounted the treating source opinion of Dr. Kraynak, and having further prescribed an RFC which exceeded the physical limitations found by the only other medical source to have examined Slotcavage, Dr. Willner, the ALJ found that, while Slotcavage could not return to his past work, there were substantial jobs in the regional and national economy he could perform. The ALJ therefore denied this claim at Step 5 of the sequential analysis which applies to disability cases. (Tr. 69-70.)
This appeal followed. (Doc. 1). On appeal, Slotcavage challenges the ALJ's determination in several respects. First, Slotcavage presents an Appointments Clause challenge, arguing that the ALJ was not constitutionally appointed at the time of his hearing, and thus he is entitled to a new hearing in front of a properly appointed ALJ. Slotcavage also contends that the ALJ erred at Step 2 when he discounted the plaintiff's herniated discs as a severe impairment, and erred in his assessment of the medical opinion evidence by crafting an RFC which exceeded all exertional limitations found by the medical professionals who treated and examined Slotcavage.
For the reasons set forth below, we recommend that this case be remanded for further considerations of the medical treatment and opinion evidence.
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 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 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 v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). 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., 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).
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.
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 medical sources have opined regarding limitations which would support a disability claim, but an ALJ has rejected the medical opinions 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 v. Colvin, 129 F. Supp. 3d 209, 214-15 (W.D. Pa. 2015). 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 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. 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. §§ 404.1512, 416.912; 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).
C. Step 2 Analysis-Guiding Principles
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).
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.").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, 370 F.3d at 361 (citing SSR 85-28, 1995 WL 56856, at *4 ("Great care should be exercised in applying the not severe impairment concept")).
D. Legal Benchmarks for the ALJ's Assessment of Medical Opinion Evidence
The Commissioner's regulations also set standards for the evaluation of medical opinion evidence, and define medical opinions as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairments(s), and [a claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate every medical opinion received. § 404.1527(c).
In deciding what weight to accord competing medical opinions and evidence, the ALJ is guided by factors outlined in 20 C.F.R. § 404.1527(c). "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker." SSR 96-6p, 1996 WL 374180 at *2. Treating sources have the closest ties to the claimant, and therefore their opinions generally entitled to more weight. See 20 C.F.R. § 404.1527(c)(2) ("Generally, we give more weight to opinions from your treating sources..."); § 404.1502 (defining treating source). Under some circumstances, the medical opinion of a treating source may even be entitled to controlling weight. § 404.1527(c)(2); see also SSR 96-2p, 1996 WL 374188 (explaining that controlling weight may be given to a treating source's medical opinion only where it is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and it is not inconsistent with the other substantial evidence in the case record).
Where no medical source opinion is entitled to controlling weight, the Commissioner's regulations direct the ALJ to consider the following factors, where applicable, in deciding the weight given to any non-controlling medical opinions: length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the extent to which the source presented relevant evidence to support his or her medical opinion, and the extent to which the basis for the source's conclusions were explained; the extent to which the source's opinion is consistent with the record as a whole; whether the source is a specialist; and, any other factors brought to the ALJ's attention. 20 C.F.R. § 404.1527(c).
Oftentimes, as in this case, an ALJ must evaluate various medical opinions. Judicial review of this aspect of ALJ decision-making is guided by several settled legal tenets. First, when presented with a disputed factual record, it is well-established that "[t]he ALJ - not treating or examining physicians or State agency consultants - must make the ultimate disability and RFC determinations." Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). Thus, "[w]here, . . . , the opinion of a treating physician conflicts with that of [other sources], the ALJ may choose whom to credit but 'cannot reject evidence for no reason or for the wrong reason.'" Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Mason, 994 F.2d at 1066). Therefore, provided that the decision is accompanied by an adequate, articulated rationale, it is the province and the duty of the ALJ to choose which medical opinions and evidence deserve greater weight. See e.g., Deiter v. Berryhill, No. 3:16-CV-2146, 2018 WL 1322067, at *6 (M.D. Pa. Feb. 5, 2018), report and recommendation adopted, No. 3:16-CV-2146, 2018 WL 1315655 (M.D. Pa. Mar. 14, 2018). See Shoemaker v. Colvin, No. 3:16-CV-2304, 2018 WL 3245011, at *10 (M.D. Pa. Apr. 5, 2018), report and recommendation adopted sub nom. Shoemaker v. Berryhill, No. 3:16-CV-2304, 2018 WL 3239903 (M.D. Pa. July 3, 2018).
It is equally clear, however, that an ALJ may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions. Durden v. Colvin, 191 F. Supp. 3d 429, 455 (M.D. Pa. 2016) (citing Thanh Tam Vo v. Colvin, No. 1:14- CV-00541-GBC, 2015 WL 5514981, at *4 (M.D. Pa. Sept. 15, 2015)) (remanding where ALJ completely rejected all medical opinions, even the one that supported the ALJ's RFC). Thus,
In a slew of decisions, the Third Circuit holds that no reasonable mind would find the ALJ's evidence to be adequate when the ALJ rejects every medical opinion in the record with only lay reinterpretation of medical evidence. See Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 29-30 (3d Cir. 1986); Ferguson v. Schweiker, 765 F.2d 31, 37, 36-37 (3d Cir.1985); Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983); Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983); Kelly v. R.R. Ret. Bd., 625 F.2d 486, 494 (3d Cir. 1980); Rossi v. Califano, 602 F.2d 55, 58-59, (3d Cir. 1979); Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979); Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978). These cases also recognize the special deference owed to medical opinions from treating sources ("treating source rule")Burns v. Colvin, 156 F. Supp. 3d 579, 583 (M.D. Pa. 2016).
In short, "rarely 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." Ennis v. Astrue, No. 4:11-CV-01788, 2013 WL 74375, at *6 (M.D. Pa. Jan. 4, 2013) (Munley, J.) (citing Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) ("No physician suggested that the activity Doak could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence")).
It is against these legal guideposts that we assess the ALJ's decision in the instant case.
E. This Case Should Be Remanded for Further Consideration and Articulation of the Grounds for the ALJ's Decision.
As we have noted, 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, 642 F.2d at 704. Furthermore, the ALJ must also "indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck, 181 F.3d at 433. The Court also notes that, while the Commissioner's regulations call for the consideration of all medical opinions, case law construing the regulations states a clear preference for the informed opinions of doctors who have actually treated or examined a claimant. Further, we recognize that in fashioning a residual functional capacity assessment for a claimant, an ALJ typically may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions. Durden, 191 F. Supp. 3d at 455 (citing Thanh Tam Vo, 2015 WL 5514981, at *4) (remanding where ALJ completely rejected all medical opinions, even the one that supported the ALJ's RFC)). Finally, it is well-settled that, at Step 2, a severity inquiry regarding a claimant's impairments is a "de minimus screening device to dispose of groundless claims." McCrea, 370 F.3d at 360; Newell, 347 F.3d at 546. "Any doubt as to whether this showing has been made is to be resolved in favor of the applicant." Velazquez, 2008 WL 4589831, *3 (quoting McCrea, 370 F.3d at 360) (internal quotations omitted)). Thus, "[t]he claimant's burden at step two is 'not an exacting one.'" McCrea, 370 F.3d at 360 (internal citations omitted).
In light of these legal tenets, we recommend that this case be remanded for further consideration of the medical opinion evidence and a further Step 2 determination regarding the diagnosis of severity of Slotcavage's herniated discs.
At the outset, we believe that the ALJ erred at Step 2 in completely discounting the diagnosis that Slotcavage had experienced a severe impairment—herniated discs. On this score, medical records from Slotcavage's treating physician, Dr. Raymond Kraynak, indicated as early as March of 2012 that Slotcavage was diagnosed with this condition and that "diagnostic studies showed a herniated disc at L-4/5 and L-5/S-1." (Tr. 1012.) Over the next two years, from March 2012 through March 2014, Dr. Kraynak consistently diagnosed Slotcavage as suffering from herniated discs, and stated that Slotcavage was "unable to work" and was "totally disabled" due to these injuries. (Tr. 1002-1005, 1010-11.)
Tr. 967, 969, 971, 973, 975, 977, 979, 981, 983, 985, 987, 989, 991, 993, 995, 997, 999, 1001, 1009-11.
These are significant, albeit contested, medical findings that cannot be lightly discounted at Step 2 of this sequential analysis. As we have noted:
"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).
In the instant case, the ALJ's Step 2 determination, which rejected the finding that Slotcavage suffered from a severe impairment due to herniated discs, went far beyond the de minimis screening standards prescribed by law. Moreover, this Step 2 analysis did not comport with the idea that "[t]he claimant's burden at step two is 'not an exacting one.'" McCrea, 370 F.3d at 360 (internal citations omitted). Instead, at Step 2, the ALJ put Slotcavage to an exacting burden of proof, demanding independent documentary evidence to support Dr. Kraynak's statement that "diagnostic studies showed a herniated disc at L-4/5 and L-5/S-1." (Tr. 1012.) This heightened level of scrutiny is inconsistent with the notion that, in order to meet the Step 2 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. Simply put, while this determination concerning the degree to which Slotcavage is limited by this impairment may have been appropriate at the latter stages of this sequential analysis, it was not proper at the outset of the evaluation of Slotcavage's claim.
Moreover, the decision to exclude this diagnosis as a severe impairment at Step 2 cannot be deemed harmless since that decision, in turn, appears to have contributed to a decision by the ALJ to formulate a residual functional capacity for Slotcavage that exceeded all of the physical limitations found by the treating source, Dr. Kraynak, and that also exceeded some of the limitations found by the consulting examining physician, Dr. Willner. It is axiomatic that an ALJ may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions. Durden, 191 F. Supp. 3d at 455 (citing Thanh Tam Vo, 2015 WL 5514981, at *4) (remanding where ALJ completely rejected all medical opinions, even the one that supported the ALJ's RFC)). Therefore, the adoption of a residual functional capacity for Slotcavage that exceeded all medical limitations found by treating and examining medical professionals, coupled with the decision at the outset of this analysis to discount the severity of the plaintiff's herniated discs, in our view calls for further evaluation, development, and assessment of the medical record.
Because the Court has found a basis for remand on these grounds, we need not address Slotcavage'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.
In particular, we note that Slotcavage has made an Appointments Clause challenge pursuant to the recent ruling in Lucia v. S.E.C., 138 S. Ct. 2044 (2018), which held that SEC ALJs are "inferior officers" who must be appointed by the President, the Court, or the head of department, rather than the Commission. Lucia, 135 S. Ct. at 2051. To the extent that Lucia's holding applies to Social Security ALJs, a number of courts have held that these challenges are essentially waived if they are not brought in front of the agency. See Turner Bros. Inc., v. Conley, 2018 WL 6523096 (10th Cir. Dec. 11, 2018); Weatherman v. Berryhill, 2018 WL 6492957 (W.D.N.C. Dec. 10, 2018); Pearson v. Berryhill, 2018 WL 6436092 (D. Kan. Dec. 7, 2018); Faulkner v. Comm'r of Soc. Sec., 2018 WL 6059403 (W.D. Tenn. Nov. 19, 2018); Davidson v. Comm'r of Soc. Sec., 2018 WL 4680327 (M.D. Tenn. Sept. 28, 2018); Stearns v, Berryhill, 2018 WL 4380984 (N.D. Iowa Sept. 14, 2018). Other courts have found this to be a structural error which compels a remand. See Bizarre v. Berryhill, 364 F. Supp. 3d 418, 419 (M.D. Pa. 2019). However, because we have found a basis for remand on other grounds relating to the ALJ's evaluation of the medical evidence, we need not address the merits of this argument.
IV. Recommendation
Accordingly, IT IS RECOMMENDED that Slotcavage'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.
Failure to file timely Objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
Submitted this 3d day of June, 2019.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge