Newman v. Berryhill

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA □

JACQUELINE NEWMAN, ob

Plaintiff

: CIVIL ACTION NO. 3:19-0016

«(JUDGE MANNION)

ANDREW M. SAUL‘, | Bo

Commissioner of Social Security,

Defendant 4

MEMORANDUM

Pending before the court is the report of Judge Mehalchick, (Doc. 18),

recommending that plaintiff's appeal from the final decision of the

Commissioner of Social Security be granted, and that the decision of the

‘Commissioner be reversed. and the case be remanded for further

proceedings. Judge Mehalchick reviewed the record in this case pursuant to

42 U.S.C. §405(g) to determine whether there is substantial evidence to |

_ || support the Commissioner's decision denying the plaintiff's claim for

Supplemental Security Income (“SSI”) under Title XVI of the Social Security □

‘Act, (“Act”). 42 U.S.C. §§401-433, 1381-1383f. The Commissioner has filed

objections to the report. (Doc. 19): The plaintiff, Jacqueline Newman,

responded to the Commissioner's objections. (Doc. 20). For the following □

‘Andrew M. Saul was sworn in as Commissioner of Social Security on | _

June 17, 2019, and is automatically substituted as the defendant in this | □

- | action. See Fed.R.Civ.P. 25(d). - .

reasons, the report and recommendation will be ADOPTED and, plaintiff's

appeal of the decision of the Commissioner, (Doc. 1), willbe GRANTED. The

Commissioner's decision will be REVERSED and, plaintiff's case will be

REMANDED to the Commissioner.”

aL STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1 ); Brown □□□

| Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

andthe court may rely on the recommendations of the magistrate judge to the

extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. □

| 2000) (citing United States V. Raddatz. 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, “satisfy itself |.

that there is no clear error on the face of the record in order to accept the | |

recommendation.’ Fed. R. Civ. P. 72(b), advisory commitiee notes; see □□□□

Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465. 469 (M.D.Pa.

2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) | □ □

(explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

?The court notes that since Judge Mehalchick stated the full procedural

history of this case in her report and since the parties did not object to it, the

_ | court will not repeat it herein.

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

| $636(b)(1); Local Rule 72.31. oe

When reviewing the denial of disability benefits, the court must |

determine whether the denial is supported by substantial evidence. Brown v. -

Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson Vv. Commissioner of

Social Sec... F.3d 198, 200 (3d Cir, 2008 ). 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, 108 S.Ct. 2541, 101 |

L.Ed.2d 490 (1988); Hartranft v. Apfel, 181 F.3d 358, 360. (3d Cir. 1999),

Johnson, 529 F.3d at 200. It is less than a preponderance of the evidence but

| more than a mere scintilla. Richardson v. Perales, 402 US. 389, 401, 91

S.Ct. 1420, 28 L.Ed.2d 842 (1971). If the ALJ's decision is supported by

substantial evidence, the court is “pound by those findings.” Fargnoli v.

Massanari, 247 F.3d 34, 38 (3d Cir, 2001) (citation omitted). Furthermore, in |

determining if the ALJ's decision is supported by substantial evidence the

court may not parse the record but rather must scrutinize the record as a |

whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981 ).

To receive disability benefits, the plaintiff must demonstrate an “inability

Ito 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. §432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only

his physical or mental impairment. impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience,

engage in any other kind of substantial gainful work which exists

| in the national economy, regardless of whether such work exists

in the immediate area in which he lives, or whether a specific job

vacancy exists for his, or whether he would be hired if he applied

for work. For purposes of the preceding sentence (with respect to □

any individual), ‘work which exists in the national economy’ means .

work which exists in significant numbers either in the region

where such individual lives or in several regions of the country.

42 U.S.C. §423(d)(2)(A). □□

ll. RELEVANT MEDICAL EVIDENCE .

Judge Mehalchick’s report and recommendation (“R&R”), as wellas □□□

‘initial briefs of the parties, contain a thorough review of the plaintiffs medical

history. The parties did not file any objections to Judge Mehalchick’s report

with respect to the relevant medical history, sO. it will .be adopted. See

Butterfield v. Astrue, 2010 WL 4027768, *3 (E.D.Pa. Oct. 14, 2010) (“To

obtain de novo determination of a magistrate [judge’s] findings by a district |

court, 28 U.S.C. §636(b)(1) requires both timely and specific objections to the

report.”) (quoting Goney v. Clark, 749 F.2d 5, 6 (3d Cir. 1984)). Also, since the

| five-step legal framework for addressing a disability claim was properly stated

in the R&R and the decision of the Administrative Law Judge (“ALJ”), (Doc.

8-2), and the findings of each step is in the record, (Tr. 18-26), the court

|| incorporates by reference these portions of the ALU’s decision. == == □□

4 oe

DISCUSSION

On March 23, 2015, the plaintiff, at age 46, filed an application for SSI

initially alleging an onset disability date of December 1, 2010. Subsequently, | □

plaintiff amended her onset disability date to March 23, 2015. In an October

3, 2017 decision, the ALJ found that the plaintiff was not disabled from March |

23, 2015, through the date of his decision. (Tr. 27). The ALJ found that

plaintiff had the following six severe impairments: fibromyalgia, chronic pain

syndrome,. cervical radiculitis, migraine headaches, anxiety disorder, and

depressive disorder. However, the ALJ determined that plaintiff did not have |

an impairment or combination of impairments that met or medically equaled □

the severity of one of the listed impairments, including Listing 1.04 (“disorders

of the spine”), Listing 12.04 (‘depressive, bipolar and related disorders”), and

12.06 (“anxiety and obsessive-compulsive disorders’). (Tr. 19-25).

The plaintiff challenged the ALJ’s evaluation of the opinions and

functional assessments of her treating physician, Dr. Jeff Perry, in which he

afforded them little weight, and the ALJ’s RFC assessment regarding her

physical and mental limitations and findirig that she could perform light work

_. | with restrictions. —

In her report, Judge Mehalchick agrees with the. plaintiff and

recommends that the Commissioner's decision be vacated and the case be

remanded since substantial evidence does not support the ALJ's evaluation |

| of Dr. Perry's opinions. The report thoroughly explains why it finds that the

ALJ afforded too little weight to the opinions and assessments of Dr. Perry.

The report also finds that the ALJ’s physical RFC assessment is not

supported by substantial evidence, particularly since the ALJ failed to give any

medical opinion regarding plaintiff's exertional limitations (including Dr. Perry’s

opinions) more than little weight.°

1. Credibility of Dr. Perry

As his first objection, the Commissioner claims that the ALJ did properly

evaluate the opinions of Dr. Perry. Specifically, he contends that substantial

evidence supported the ALJ’s assessment since he considered Dr. Perry’s

relationship with plaintiff, plaintiff's conservative treatment, plaintiff's daily

_ | activities, and the objective medical evidence and examination findings in the

record. The Commissioner also points out that plaintiff's conservative

treatment with Dr. Perry when she saw him every four months did not support

the doctor's “extreme opinion” that plaintiff was not able to perform even

sedentary work. The ALJ further found that plaintiff's daily activities and Dr.

_|| Perry's examination findings did not support the doctor's opinions.

Additionally, the ALJ found that Dr. Perry's opinion that plaintiff's pain or other

symptoms would constantly interfere with her attention/concentration was not

consistent with the record which he stated indicated she only had a mild

_ | impairment with attention and concentration. .

Dr. Perry treated plaintiff for several years and saw her every four

months. Indeed, there was a significant treatment relationship between Dr.

’Since the ALJ’s RFC findings are stated in his decision, (Tr. 21), they

are not repeated.

«6B

Perry and plaintiff. The R&R finds that the ALJ erred by failing to give proper

weight to Dr. Perry’s two RFC assessments (2015 and 2017) and the doctor's

findings that plaintiff had a less than sedentary functional capacity, that she

could only stand/walk for two hours in an eight-hour day and rarely lift 10

pounds, and is not capable of full-time work. The report also finds that since

the ALJ did not give proper weight to Dr. Perry’s opinions, which were based

on his years of treating plaintiff, which had support in the record, and which

were consistent with plaintiff's daily activities, the ALU’s RFC assessment was

not supported by substantial evidence. (Tr. 23-24, 1015-1017). The R&R

further finds that the ALJ improperly used Dr. Perry’s treatment notes to

discredit his opinions, and that the ALJ’s finding that the doctor’s opinions

were not supported by his treatment notes was based on the ALJ's own lay

opinion. In particular, the R&R finds that although the ALJ rejected Dr. Perry’s

opinion regarding plaintiffs “limited ability to stand, walk, and lift based on

‘findings or normal gait and strength upon examination”, “without other

medical testimony or evidence, the Court is left only with the ALJ’s lay opinion

that a finding of normal gait and strength is inconsistent with [plaintiffs] pain-

related limitations [associated with her fibromyalgia-related pain and chronic

pain syndrome].” (emphasis original). See Griffies v. Astrue, 855 F.Supp.2d

257, 274 (D.De. 2012) (“In choosing to reject the treating physician's

assessment, an ALJ may not make ‘speculative inferences from medical

reports.”) (citation omitted). The regulations set: forth at 20 C.F.R.

§404.1527(a)(2) and §416.927(a)(2), 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 impairment(s), and [a claimant’s]

physical or mental restrictions.” Regardless of its source, the ALJ is required

to evaluate every medical opinion received. 20 C.F.R §404.1527(c) and

§416.927(c). :

Under the regulations, a treating physician’s opinion receives

“controlling weight’ if it is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques,” and “not inconsistent with the other

substantial evidence in [the] case record[.]" 20 C.F.R. §404.1527(c)(2),

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). If the ALJ does not give

a treating physician’s opinion controlling weight, he must provide his reasons

for the weight given. 20 C.F.R. §404.1527. Where the ALJ finds that no

treating source opinion is entitled to controlling weight, the regulations provide

that the weight of all non-controlling opinions by treating, non-treating, and

non-examining medical sources should be evaluated based on certain factors.

Those factors include the examining relationship, the length of the treatment

relationship and frequency of visits, nature and extent of the treatment

relationship, whether the medical source supports the opinion with medical

evidence, whether the opinion is consistent with the record as a whole, and

the medical source’s specialization. 20 C.F.R. §404.1527(c)(1-5). In addition,

the ALJ should consider any other factors that tend to support or contradict

the opinion that were brought to his attention, including “the extent to which

acceptable medical source is familiar with the other information in [the].

case record.” 20 C.F.R. §404.1527(c)(6). See Markoch v. Colvin, 2015 WL

2374260, at *6 (M.D.Pa. May 18, 2015).

Additionally, the ALJ must consider all of the relevant evidence and give

a clear explanation to support his findings.” Fargnoli, 247 F.3d at 40-41

(quoting Burnett. v. Comm’r of Soc. Sec. Admin., 220 F.3d 412, 121 (3d Cir.

2000)). If the ALJ discounts certain evidence, he must give some indication

of the reasons for discounting that evidence. ” Fargnoli, 247 F.3d at 43. While | □

the ALJ may choose whom to credit in his analysis, he “cannot reject

evidence for no reason or for the wrong reason.” Morales v. Apfel, 225 F.3d

310, 316-18 (3d Cir. 2000). The ALJ has the duty to adequately explain the

| evidence that he rejects or to which he affords lesser weight. Diaz v. Comm’r |

of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009) (holding that because the

_ | ALJ did not provide an adequate explanation for the weight he gave to several

| medical opinions, remand was warranted). “The ALJ's explanation must be

sufficient enough to permit the court to conduct a meaningful review.” Morales

v. Colvin, 2016 WL 907743, at *8-9 (M.D. Pa. Mar. 2, 2016) (quoting

Moore v. Comm'r of Soc. Sec., 2012 WL 2958243, at *2 (D.N.J. July 19, |

2012) (citing Burnett, 220 F.3d at 119-20). oa

No doubt that the opinions of plaintiff's treating physician are generally

entitled to significant weight. The Third Circuit has “long accepted” that the

findings of treating physician “must [be] give[n] greater weight ... than ... the

findings of a physician who has examined the claimant only once or not at all.”

Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (citations omitted). The

regulations as well as courts require the ALJ “give good reasons for the

amount of weight given to a treating physician’s opinion.” Fargnoli, 247 F.3d

42-44: see also 20 C.F.R. §404. 1 527(d)(2). Atreating physician’s opinion can

be rejected by the ALJ based on contradictory medical evidence. See

Frankenfield, 861 F.2d at 408.

The court concurs with the R&R, and the reasons detailed therein, that

the ALJ erred with respect to the weight he afforded to Dr. Perry's opinions

regarding plaintiff's limitations since they were well-supported and consistent

with the other substantial evidence, including plaintiff's testimony. (Doc. 18 at

10, 15-16). The R&R also correctly determines that further discussion and

remand is required to determine why the ALJ discounted Dr. Perry’s opinion

that plaintiff's ability to stand, walk, and lift were limited and the doctor's □

opinion that plaintiff's pain would interfere with her concentration and

attention, especially considering plaintiffs testimony about her constant

“stabbing pain.” Moreover, “[t]he elusive nature of fibromyalgia, and the lack

of objective symptoms, however, require the reliance of a treating doctor on

plaintiff's subjective complaints]. Griffies, 855 F.Supp.2d at 272 (citing Foley

_ |v. Barnhart, 432 F.Supp.2d 465, 476, 480 (M.D.Pa. 2005) (“[I]n a disability

determination involving fibromyalgia, it is error to require objective findings

when the disease itself eludes such measurement.”). “Fibromyalgia is a

disease that often lacks objective evidence, making the subjective complaints

10

of a claimant especially important to the disability determination.” /d. at 276

(citation omitted). Therefore, “unverified subjective complaints consistent □□□□□□

the fibromyalgia cannot be discredited for lack of objective evidence.” Id. at

| Thus, the R&R properly concludes that since. “the record is not

‘inconsistent with Dr. Perry’s opinion concerning [plaintiff's] limitations, .. [the]

ALJ afforded Dr. Perry too little weight.” □

As such, the Commissioner's first objection will be overruled. □

2. Plaintiff's Physical RFC Assessment □□

Initially, the court has found that the ALJ's physical RFC assessment

was not supported by substantial evidence since he did not give proper weight

to Dr. Perry’s opinions and his physical assessments of plaintiff.

The Commissioner is correct 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). “The ALJ must consider all relevant evidence. when

determining an individuals [RFC] in step four.” Faranoli, 247 F.3d at 41. Such

evidence includes “medical records, observations made during formal medical

examinations, descriptions of limitations by the claimant and others, and

observations of the claimant's limitations by others.” Id. However, the ALJ |.

cannot reject a treating physician's written medical Opinion based on his own.

credibility judgments, speculation or lay opinion. See Compton v. Colvin, 218 □

F.Supp.3d 316, 330 (M.D.Pa. 2016) (citing Morales, 225 F.3d at 316-18). |

41.

“Regardless of what the weight an administrative law judge affords to medical

| opinions, the administrative law judge has the duty to adequately explain the

evidence that he or she rejects or affords lesser weight.” Id. (citing Diaz v. |

| Comm’r of Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009) (the ALJ “must |.

clearly set forth the reasons for his decision.”)). ‘The ALJ’s explanation must |

be sufficient enough to permit the court to conduct a meaningful review.” Id. |

(quoting Burnett, 220 F.3d at 119-20).

The court has found that the R&R correctly determines that remand is |

| appropriate since the ALJ failed to adequately explain the inconsistent

evidence in the record to support his decision to afford little weight to Dr. | □ □

Perry’s opinions regarding plaintiff's physical limitations which he found. The | □

court finds that the ALJ’s credibility determination with respect to Dr. Perry is

not supported by substantial evidence based on ‘the above disciission.

Additionally, the court finds that the ALJ's failure to properly discuss the

limitations which Dr. Perry included in his RFC assessments which would

_|| preclude the plaintiff from performing any employment renders the ALJ’s

credibility determination -and his RFC determination unsupported by

substantial evidence. It is well-settled that “[i]Jn making a [RFC] determination,

the ALJ must consider all evidence before him.” Burnett, 220 F.3d at □□□□

The Commissioner also objects to the R&R arguing that it incorrectly | □

__ || found that the ALJ was compelled to rely on medical opinion evidence prior

to arriving at his RFC determination, and that it erroneously holds that an ALJ

| cannot issue an RFC assessment without a matching medical opinion. This

court considered the issue raised by the Commissioner in several cases,

including Brown v. Colvin, 2015 WL 7428579 (M.D.Pa. Nov. 23, 2015). In|

Brown, id. at *2, this court stated that “[a]lthough the Third Circuit previously

_ | indicated that the ALJ must always base his RFC finding ona medical opinion □

from a physician, see Doak v. Heckler, 790. F.2d 26 (3d Cir. 1986),” ...

| “consistent with the latter case law, [see Chandler v. Comm'r of Soc. Sec., □

667 F.3d 356, 362 (3d Cir. 2011)] the Commissioner argues that Doak does

not prohibit an ALJ from making an RFC assessment even if no physician has |.

specifically made findings and even if the only medical opinion in the record

is to the contrary.”

This court in Brown, /d.; then stated:

The issue raised by the Commissioner has recently been raised

and addressed in another case in the Middle District. See Kester

v. Colvin, 2015 WL 1932157 (M.D.Pa., April21,2015) (Brann, J.).

As in that case, the court agrees with the Commissioner that the

RFC assessment must be based on consideration of all of the

evidence in the record, including the testimony of the claimant □

regarding his activities of daily living, medical records, lay

evidence and evidence of pain. /d. at *2 (citing Burnett v. Comm’r

of Soc. Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2002: 20 □

C.F.R. §404.1545(a)). The court further agrees that the ALJ has

the sole responsibility for determining a claimant’s RFC. See SSR

96-5P. pn □ □

Nonetheless, the court found “[rlarely can a decision be made regarding | □

a Claimant's [RFC] without an assessment from a physician regarding the | □

functional abilities of the claimant.” /d. (citing Kester, 2015 WL 1932157, □□ □

Gormont v. Astrue, 2013 WL 791455 at *7 (M.D.Pa., Mar. 4, 2013)). Further,

| the court stated, “an ALJ must not speculate as to a claimant's RFC and,

such, must support a RFC determination with medical evidence inthe record. | □

Id. (citing Kester, at *3). Thus, the court held that “the Third Circuit has upheld

remand where the ALJ’s RFC determination was not supported by the

assessment of any physician in the record.” /d. (citing Kester, at *3; Doak,

supra).*

As such, the court will remand this case to the Commissioner for further

_ || proceedings consistent with the R&R. See Compton v. Colvin, 218 F.Supp.3d

316 (M.D.Pa. 2016)(the court remanded case to the Commissioner since the

ALJ improperly afforded significant weight to opinion of a non-treating,

non-examining physician over opinions of treating physicians). The court finds

that substantial evidence does not support the ALJ’s RFC determination

| because remand is required to determine if he afforded proper weight to the

opinions of plaintiff's treating physician, Dr. Perry, regarding plaintiff's physical

limitations. □

Therefore, the Commissioner's second objection to Judge Mehalchick’s

“As this court noted in Brown, 2015 WL 7428579, *2 n. 3, “in Kester.

[the court noted that] the Doak and Chandler decisions have been reconciled

as follows:

Any argument from the Commissioner that his administrative law

judges can set the residual function capacity in the absence of

medical opinion or evidence must be rejected in light of Doak.

Furthermore, any statement in Chandler which conflicts (or

arguably conflicts) with Doak is dicfa and must be disregarded.

Government of Virgin Islands v. Mills, 634 F.3d 746, 750 (3d Cir.

2011) (a three member panel of the Court of Appeals cannot set

aside or overrule a precedential opinion of a prior three member

panel).

(Citing Gunder v. Astrue, 2012 WL 511936 (M.D.Pa., Feb. 15, 2012)).

14

report will be overruled. □

IV. CONCLUSION

In light of the foregoing, Judge Mehalchick’s report and

recommendation, (Doc. 18), is ADOPTED, and the Commissioner's

objections, (Doc. 19), are OVERRULED. The plaintiffs appeal, (Doc. 1), is

GRANTED, and the Commissioner's decision is REVERSED. The plaintiff ‘s

case is REMANDED to the Commissioner for further proceedings. A separate

order shall issue.

s/ Uebecky E. Wauntion

MALACHY E. MANNION

United States District Judge

Dated: February 21, 2020

\

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