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Michele Nicely v. Michael Astrue

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA


April 11, 2012

MICHELE NICELY, PLAINTIFF
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SOCIAL SECURITY, DEFENDANT

The opinion of the court was delivered by: (Judge Caputo)

(Complaint Filed 11/19/10)

MEMORANDUM

BACKGROUND

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Michele Nicely's claim for social security disability insurance benefits and supplemental security income benefits. For the reasons set forth below we will remand the case to the Commissioner for further proceedings.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Nicely met the insured status requirements of the Social Security Act through December 31, 2003. Tr. 20, 23 and 255.*fn1 In order to establish entitlement to disability insurance benefits Nicely was required to establish that she suffered from a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).

Supplemental security income is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income. Insured status is irrelevant in determining a claimant's eligibility for supplemental security income benefits.

Nicely was born in the United States on July 8, 1949. Tr. 183 and 684. Nicely graduated from high school in 1967 and can read, write, speak and understand the English language. Tr. 237 and 684. After graduating from high school Nicely attended college for several years but never obtained a degree. Tr. 183, 186, 684 and 788. Nicely has past relevant employment*fn2 as a postal clerk which was described by a vocational expert as semi-skilled, light work as generally performed but that Nicely did engage in some heavy exertional duties.*fn3 Tr. 786.

Nicely commenced employment in 1968. Tr. 197. Records of the Social Security Administration reveal that Nicely had employment in 1968 through 1977, 1980 and 1981, 1984 through1995, and 1997 through 2000. Tr. 214. There are no earnings reported in the years 1978, 1979, 1982 and 1983. Id. During the 15 years from 1986 through 2000, Nicely's earnings were as follows:

1986 $18566.27 1987 20538.89 1988 21375.90 1989 23923.84 1990 25654.06 1991 28372.83 1992 30196.30 1993 29301.75 1994 27713.67 1995 19634.91 1996 0.00 1997 33670.11 1998 14964.98 1999 5985.31 2000 209.00 Id. Nicely's total earnings from 1968 through 2000 were $340,874.90. Id. There are no earnings reported after the year 2000.*fn4 Id.

Nicely claims that she became disabled on April 30, 1999, because of both physical and mental impairments. Tr. 183-185 and 238. The record reveals that Nicely complained of headaches, low back and leg pain, fatigue, anxiety and depression. Tr. 261, 365, 380 and 384-385.

This case has a long and tortuous procedural history. On October 29, 2001, Nicely filed protectively*fn5 an application for disability insurance benefits and an application for supplemental security income benefits.*fn6 Tr. 19, 183-185, 217 and 255. On May 7, 2002, the Bureau of Disability Determination*fn7 denied Nicely's applications. Tr. 19, 41 and 75-78. On June 27, 2002, Nicely requested a hearing before an administrative law judge. Tr. 79. A hearing before an administrative law judge was held on November 20, 2002. Tr. 19, 109 and 115. The transcript of that hearing is missing from the administrative record. On January 30, 2003, the administrative law judge issued a decision denying Nicely's applications. Tr. 47-54. The administrative law judge found that Nicely was not disabled because Nicely had the residual functional capacity to perform a limited range of sedentary work*fn8 and that Nicely's "past relevant work as mail clerk did not require the performance of work related activities precluded by her residual functional capacity[.]" *fn9 Tr. 54. On February 5, 2003, Nicely requested that the Appeals Council review the administrative law judge's decision. Tr. 117-118. After 18 months had passed, the Appeals Council on August 6, 2004, issued a decision remanding the case to the administrative law judge for further proceedings. Tr. 125-127. The Appeals Council noted that (1) the administrative law judge's decision did not contain an evaluation of Nicely's past relevant work as a mail handler and the record was insufficient to determine whether Nicely could perform her past relevant work , and (2) the hearing tape was partially inaudible making the record incomplete. Tr. 126.

A second administrative hearing was held before the same administrative law judge on April 21, 2005. Tr. 19, 128 and 142. The transcript of this hearing is also missing from the administrative record. On October 25, 2005, the administrative law judge issued a decision denying Nicely's application for disability insurance benefits and granting Nicely's application for supplemental security income benefits as of July 19, 2005. Tr. 55-68. The administrative law judge found that from April 30, 1999, her alleged disability onset date through and including December 31, 1999, Nicely had engaged in substantial gainful activity and was not disabled during that period. Tr. 67. He further found that since January 1, 2000, Nicely had a severe impairment*fn10 but that from that date through and including July 18, 2005, Nicely retained the residual functional capacity necessary to perform a limited range of light work and retained the capacity to perform her past relevant work as a mail handler and sorter. Id. Consequently, she was not entitled to disability insurance benefits because the date last insured was December 31, 2003.*fn11 However, commencing on July 19, 2005, the day that Nicely underwent an evaluation by William Jamack, D.O., a state agency psychiatrist, the administrative law judge found that Nicely was disabled based upon the application of GRID Rule 202.06*fn12 and was eligible for supplemental security income benefits. Tr. 67.

On November 4, 2005, Nicely requested that the Appeals Council review the portion of the administrative law judge's decision which found that she was not disabled between April 29, 1999, and July 19, 2005, but asked that the Social Security Administration process the SSI benefits that were approved. Tr. 143-144. After 26 months had passed, the Appeals Council on January 9, 2009, granted Nicely's request for review and remanded the case to a different administrative law judge for further proceedings. Tr. 69-74. The Appeals Council directed, inter alia, that the new administrative law judge (1) consider whether Nicely engaged in substantial gainful activity after her alleged onset date of April 30, 1999, (2) give further consideration to Nicely's maximum residual functional capacity during the entire period, and (3) give further consideration to treating source opinions and examining source opinions, and explain the weight given to such opinions. Tr. 73.

A third hearing was held on May 21, 2009, before a different administrative law judge. Tr. 770-792. At that hearing Nicely testified and also a vocational expert Peter Manzi testified. Id. On June 18, 2009, the administrative law judge issued a decision denying Nicely's application for disability insurance benefits and granting Nicely's application for supplemental security income benefits commencing on July 8, 2004. Tr. 19-37. On August 3, 2009, Nicely requested that the Appeals Council review the administrative law judge's decision. Tr. 15 and 769. After more than a year had passed, the Appeals Council on October 8, 2010, concluded that there was no basis upon which to grant Nicely's request for review. Tr. 9-12. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

On November 19, 2010, Nicely filed a complaint in this court requesting that we reverse the decision of the Commissioner denying her disability insurance benefits. The Commissioner filed an answer to the complaint and a copy of the administrative record on February 4, 2011. After being granted one extension of time, Nicely filed her brief on May 5, 2011, and the Commissioner filed his brief on June 7, 2011. The appeal*fn13 became ripe for disposition on June 8, 2010, when Nicely filed a reply brief.

STANDARD OF REVIEW

When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)("Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently."); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

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)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. 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 an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979). SEQUENTIAL EVALUATION PROCESS

To receive disability benefits, the plaintiff 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. § 432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if his physical or mental impairment or 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 him, 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).

The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity,*fn14 (2) has an impairment that is severe or a combination of impairments that is severe,*fn15 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn16 (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant's residual functional capacity. Id.*fn17

Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and continuing basis contemplates full-time employment and is defined as eight hours a day, five days per week or other similar schedule. The residual functional capacity assessment must include a discussion of the individual's abilities. Id; 20 C.F.R. §§ 404.1545 and 416.945; Hartranft, 181 F.3d at 359 n.1 ("'Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").

MEDICAL RECORDS AND OTHER EVIDENCE

Before we address the administrative law judge's decision and the arguments of counsel, we will review Nicely's activities of daily living and some of her medical records.

According to a document filed by Nicely with the Social Security Administration in 2001, she is 5 feet in height and weighs 130 pounds. Tr. 237. In a medical report dated April 12, 2002, it was stated that Nicely weighed 160 pounds. Tr. 385.

On a questionnaire completed in March 2002 for the Bureau of Disability Determination Nicely stated that she lives in an apartment with her son, daughter and granddaughter. Tr. 261-271. Although she can no longer walk the children to and from school, she helps them with homework, and cooks and cleans with her daughter's help. Id. The document indicates that to reach the apartment and leave the apartment Nicely has to ascend and descend 24 steps. Id. However, Nicely noted that "[I] can walk up my stairs slowly. I may stop after 7 steps if I must before continuing" and "I may go out 3 times a week - once up the stairs I usually stay." Tr. 263. The document also indicates that she cannot shop for long periods of time and she rests when she has to. Sometimes, when shopping she carries 2 or 3 light plastic bags. Tr. 262. She does not shop for "long periods of time" and "will rest when necessary." Id. Her daughter does the vacuuming, takes the trash out, and helps with cooking, cleaning, and shopping. Tr. 261-262. Nicely explained that she has to be careful getting in and out of the bathtub and she finds it difficult to put on pants and socks. Tr. 262. She paces herself when dressing and with respect to all other activities. Tr. 264.

Nicely does not drive. Tr. 262. When Nicely has to go places she uses "medical transport" or friends drive her; she will take public transportation only when necessary. Id. Nicely explained that she does not do anything strenuous or for a long period of time. Tr. 263. She rests between activities. She likes to read, write, draw and participate in Bible study. Tr. 263 and 265. She starts books but rarely finishes them. Id. She tries to take walks but must walk slowly and rest frequently. Tr. 263. She cannot sit or stand for long periods and must change position about every 20 minutes. Id. She "thinks" she can lift 10 pounds but her back prevents her from lifting more. Id. She stated that she had the ability to use a regular phone, use a standard size television remote control, use a knife and fork and fasten buttons, snaps and other clothing fasteners although she no longer wore shoes that required her to tie shoe laces. Tr. 264. Nicely stated that she needed no special reminders to take care of personal needs such as washing, bathing, shaving and dressing. Id. Nicely stated that she has problems concentrating and at time becomes "extremely anxious and defensive." Tr. 267.

Nicely wrote that she can make decisions on her own and had no trouble understanding instructions and carrying them out but that she sometimes becomes frustrated with changes in her daily schedule and living arrangements; she stated she becomes argumentative when she has a disagreement with someone. Tr. 266.

Nicely stated that she has pain "sometimes [over her] entire back" and pain "radiating down the back of [her] legs." Tr. 268. The pain is caused by "prolonged" bending, standing and walking. Id. Nicely indicated that she is constantly fatigued. Tr. 267. At the time she completed the March 2002 questionnaire Nicely was taking Remeron,*fn18 Klonopin,*fn19

Darvocet*fn20 and Tylenol. Tr. 266-267. Nicely stated that the medications eased her pain "somewhat." Tr. 269. She was unsure if the medications caused side effects. Id.

The administrative record contains no medical treatment records for the period April 30, 1999, through January, 2001. Nicely's primary care physician was Michael E. Callahan, D.O., who has a medical practice in Galeton, Pennsylvania. Tr. 371. Dr. Callahan first commenced treating Nicely in February, 2001, and was treating her at the time of the third administrative hearing. Tr. 371 and 778.*fn21 Dr. Callahan's handwritten treatment notes contained within the administrative record are mostly illegible.

On March 28, 2001, Nicely had an appointment with Dr. Callahan which appears to be primarily for Nicely's annual female health examination. Tr. 372-374. At that appointment Nicely complained of back pain. Tr. 372. One legible and anecdotal item in the notes of this appointment is a statement that Nicely was "seen walking from office [without] limp - upright and good stride." Id. It is not clear whether the note was made by Dr. Callahan, a nurse or a physician's assistant. Id. It appears that two individuals signed the note possibly Dr. Callahan and a nurse or a physician's assistant. Id.

A treatment note from March 29, 2001, appears to indicate that Nicely re-injured her back while pushing furniture and that she was complaining of low back pain radiating to her buttocks and legs. Tr. 371. The objective findings at the appointment appear to be as follows: "NAD[,] gait station ok[,] [positive (illegible)][,] [illegible][,][negative (illegible)][,] [heel toe] walk ok[,] DTRs [illegible][,] [sitting root negative], SLR neg[ative] [,][illegible][,] tender lumbar area." Tr. 370-371. This note suggests that Nicely was in no acute distress, her gait and station were normal, she could walk on her heels and toes, deep tendon reflexes were normal, she had a negative straight leg raise test*fn22 and the lumbar area of her spine was tender to palpation. Dr. Callahan's assessment was that Nicely was suffering from "low back pain" and he prescribed the drugs Ultram,*fn23 Toradol*fn24 and Klonopin. Tr. 370. However, we are unable to decipher the entire note.

From March 30 through July 3, 2001, there are sporadic notes in Dr. Callahan's records regarding telephone calls from Nicely regarding, inter alia, prescription refills. Tr. 369-370. On July 5, 2001, Nicely had an appointment with Dr. Callahan regarding what appears to be a respiratory infection. Tr. 368. Dr. Callahan prescribed Robitussin-AC, a cough syrup which contains the narcotic codeine and the expectorant guaifenesin.*fn25 Id. The next appointment with Dr. Callahan where Nicely complained of low back pain was on August 30, 2001. 367-368. The treatment notes are only partially legible and we will not attempt to decipher them.

On or about September 5, 2001, Dr. Callahan completed a document entitled "Pennsylvania Department of Public Welfare Employability Assessment Form." Tr. 357358. In that form Dr. Callahan stated that Nicely was permanently disabled because of back pain. Id. He based his assessment on Nicely's clinical history. Id.

On September 24, 2001, Nicely had an appointment with Dr. Callahan at which she complained of a rash. Tr. 367.

On October 24, 2001, Nicely had an appointment at the Galeton Family Chiropractic Center regarding pain in her shoulders, back, buttocks and legs. Tr. 380. A physical examination revealed a positive straight leg raising test with respect to the right leg, a positive Faber test,*fn26 and a positive Ely's test.*fn27 Tr. 382.

On October 26, 2001, Nicely had an appointment with Dr. Callahan at which Nicely complained of back pain. Tr. 366. Although Dr. Callahan's handwriting is barely legible, it appears that the physical examination findings were essentially normal or negative except for a notation that Nicely had decreased reflexes and a painful area in the thoracic and lumbar spine. Id. Dr. Callahan's diagnosis appears to be degenerative disc (or joint) disease of the spine. Dr. Callahan prescribed the nonsteroidal anti-inflammatory drug Celebrex. Id.

There is a notation in Dr. Callahan's treatment records that Nicely telephoned his office on November 5, 2001, and reported that Celebrex was not "helping her back pain" and that Dr. Callahan authorized a prescription for Klonopin. Tr. 365. In mid-November, 2001, Dr. Callahan authorized a refill of Robitussin-AC as needed for cough. Id. On December 3, 2001, Dr. Callahan authorized a refill of the prescription for Klonopin. Id.

On January 4, 2002, Nicely had an appointment with Dr. Callahan at which Nicely complained of migraine headaches and back pain. Tr. 364-365. Dr. Callahan's assessment was that Nicely was suffering from headaches, depression, anxiety and pruritus.*fn28 Dr. Callahan prescribed the drugs Tegretol*fn29 and Remeron. Id.

Nicely had appointments with Dr. Callahan periodically throughout 2002 at which she complained of back pain and Dr. Callahan's assessments included that Nicely suffered from chronic low back pain, anxiety and depression. Tr. 362, 363 and 421. At an appointment on August 26, 2002, it appears*fn30 that Dr.Callahan found that Nicely's gait was normal and that she had a negative straight leg raise test. Tr. 421. Even in light of those negative findings, Dr. Callahan's assessment was that Nicely suffered from chronic low back pain and prescribed Darvocet, Remeron and the sleep aid Ambien. Id.

On or about April 4, 2002, Nicely was examined by Gregory Nedurian, M.D., on behalf of the Bureau of Disability Determination. Tr. 384-390. Dr. Nedurian's physical examination findings appear to be essentially normal, including that Nicely had full range of motion in her extremities with no evidence of atrophy; she had excellent grip strength and her gait was normal. Id. Dr. Nedurian's assessment was that Nicely suffered from chronic low back discomfort and chronic depression. Id. Dr. Nedurian after examining Nicely completed a statement of Nicely's ability to perform work-related physical activities.*fn31 Id. Dr. Nedurian's statement limits Nicely to the exertional requirements of sedentary work. Id. He stated that Nicely had the capacity to only frequently lift 2 to 3 pounds, stand and walk only 1 to 2 hours in an 8-hour workday, and sit 8 hours with a sit/stand option. Id. He further indicated that Nicely was limited with respect to pushing and pulling with the upper and lower extremities; Nicely could only occasionally bend, kneel, stoop, crouch, balance and climb; Nicely had no limitations with respect to reaching, handling, fingering, feeling, seeing, hearing, speaking, tasting/smelling and continence; and Nicely had no environmental limitations. Id. Dr. Nedurian on or about April 26, 2002, completed a supplemental questionnaire in which he stated that Nicely's mood was pleasant; her behavior appropriate; her memory and orientation excellent; her concentration very good; her hygiene very good; and her ability to communicate clearly, relate to office staff and follow directions pleasant and appropriate. Tr. 391.

On September 4, 2002, Nicely had an MRI of the lumbar spine performed at Charles Cole Memorial Hospital, Coudersport, Pennsylvania. Tr. 430. The MRI revealed "mild generalized disk desiccation*fn32 at all levels" but "no evidence of a herniated disk." Id.

The MRI further revealed "no significant spinal degenerative spinal stenosis" and the "neural foramen [were] widely patent at all levels." Id.

On September 23, 2002, Dr. Callahan completed a document entitled "Multiple Impairments Questionnaire" on behalf of Nicely. Tr. 462-469. In that document Dr. Callahan stated that Nicely suffered from persistent low back pain and found that Nicely had physical exertional abilities and psychiatric impairments which did not permit Nicely to engage in full-time sedentary work. Tr. 464 and 467-468.

On September 30, 2002, Nicely had an appointment with Julie Ann Floyd, M.D., for evaluation of her low back pain and generalized body pain and fatigue. Tr. 500-501. Nicely was referred to Dr. Floyd by Dr. Callahan. Id. Dr. Floyd's physical examination of Nicely was unremarkable except it revealed a positive straight leg raise "in the seated position for reproduction of low back pain," and

[t]he lumbar spine is generally diminished. Range of motion with flexion. This does seem to reproduce and exacerbate pain. Discomfort is noted around the lumbar paraspinals and surrounding muscles, adjacent to L4-5, L5-S1 . . . Trigger points are noted in the cervical paraspinals and trapezius muscles. The neck is generally diminished range of motion with minimal complaint of pain around the cervical paraspinals.

Id. Dr. Floyd's assessment was that Nicely suffered from low back and intermittent lower extremity pain, discogenic low back pain with no neurologic deficit, generalized body pain and fatigue with the possibility of fibromyalgia syndrome, versus other centralized pain process, deconditioning and overweight, and chronic pain. Tr. 501. Dr. Floyd also suspected "an annular tear at L4-5 and/or L5-S1, that may be irritating the nerve root intermittently, giving a chemical radiculitis,*fn33 though the MRI at this point in time of course does not show any structural impingement." Id. Dr. Floyd again saw Nicely on October 29 and November 27, 2002, at which there were similar physical examination findings and assessments. Tr. 498-499 and 510-511.

In a letter dated October 2, 2002, to Nicely's attorney, Dr. Callahan stated that Nicely was seen in his office on March 29, 2001, with complaints of low back pain; that Nicely had been pushing furniture and re-injured herself; that Nicely had previously sustained an injury while working for the post office; that Nicely's diagnosis was low back pain based upon her medical history and examinations; that he prescribed Ultram, Toradol, Klonopin, Vicodin,*fn34 Celebrex, Darvocet, and Flexeril;*fn35 that Nicely's activities were limited because of pain with walking one block and difficulty sleeping in all positions because of pain; and that Nicely's prognosis for recovery was "poor as this condition has exceeded 12 months duration." Tr. 460.

On December 2, 2002, Nicely was evaluated by Mohammad Ashfaq, M.D., a psychiatrist, at the Charles Cole Memorial Hospital, Coundersport. Tr. 521-520. Dr. Ashfaq diagnosis was that Nicely suffered from bipolar disorder, not otherwise specified, and gave Nicely a Global Assessment of Functioning (GAF) score of 60.*fn36 Id.

On February 12, 2003, Nicely had an appointment with Dr. Floyd regarding her low back pain and generalized body pain and fatigue. Tr. 746. A physical examination revealed a negative straight leg raise test; diminished lumbar spine range of motion with flexion and extension; discomfort with extension and flexion at the L4-5 and L5-S1 levels of the lumbar spine; upper thoracic spine kyphosis*fn37 ; and generalized discomfort and trigger point activity upon deep palpation around the lumbar paraspinals and quadratus lumborum.*fn38

Id. Dr. Floyd's assessment was that Nicely suffered from low back and intermittent lower extremity pain; discogenic low back pain with no neurological deficit with probability of L4-5 and/or L5-S1 annular tear and intermittent chemical radiculitis; generalized body pain and fatigue with possibility of fibromyalgia syndrome and depression; and deconditioning and overweight. Id.

In 2004, Nicely commenced treating with Jon R. Grigg, M.D., a psychiatrist located in Coundersport. Tr. 538-545. Dr. Grigg concluded that Nicely suffered from bipolar disorder and that Nicely was markedly limited in several mental functional abilities, including the ability to carry out detailed instructions, maintain attention and concentration for extended periods of time, perform activities within a schedule, and maintain regular attendance and be punctual within customary tolerance. Tr. 541. On December 27, 2005, Dr. Grigg prepared a report which stated in pertinent part as follows:

Ms. Nicely has been under my care since August 14, 2004 for bipolar disorder, mixed, and previous polysubstance, in remission; I feel Ms. Nicely has been and continues to be totally disabled without consideration of any past or present drug and/or alcohol use. I continue to see her monthly; her prognosis for improvement remains poor.

Ms. Nicely also has a lengthy psychiatric history beginning in October 2002. I have had the opportuninty to review the following reports:

Dr. Mohammad Ashfaq saw Ms. Nicely for a psychiatric evaluation on December 2, 2002. . . Dr. Ashfaq diagnosed bipolar disorder, NOS and history of back pain. . . .

Clarrisse Wilson, MSW, began treating Ms. Nicely on October 3, 2002. . . . Ms. Wilson diagnosed bipolar disorder, NOS, and history of back problems. . . Ms. Wilson reported that Ms. Nicely was significantly limited in the ability to maintain attention and concentration for extended periods, her ability to sustain ordinary routine without supervision, her ability to make simple work related decisions, her ability to complete a normal workweek without interruption from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, and her ability to interact with the general public.

I have reviewed the above reports of Dr. Ashfaq and Ms. Wilson, and I agree with the severity of their findings.

In my experience with Ms. Nicely, I have consistently noted clinical findings and symptoms of appetite disturbance with weight change, sleep disturbance, mood disturbance, emotional lability, anhedonia or pervasive loss of interests, inappropriate suspiciousness, difficulty thinking or concentrating, social withdrawal, constricted effect, decreased energy, generalized persistent anxiety, hostility and irritability, agitation, and racing thoughts.

As a result of her impairments, Ms. Nicely remains effectively precluded from . . . the ability to carry out detailed instructions, ability to maintain attention and concentration, ability to perform activities within a schedule . . . ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. . . . .

The patient is incapable of even low stress and would be absent from work more than three times a month . . . .

In my best medical judgment, including personal experience with Ms. Nicely and review of her other mental health treatment records, the above symptoms and limitations have been present since April of 1999, and likely earlier. It is also clear that her drug and/or alcohol use is not material to Ms. Nicely's ability to work as the psychiatric problems alone cause the limitations discussed. Tr. 690-691.

On July 21, 2005, William Jamack, D.O., a psychiatrist, evaluated Nicely on behalf of the Bureau of Disability Determination. Tr. 682-688. Dr. Jamack concluded that Nicely suffered from bipolar disorder, generalized anxiety disorder, opiate dependence, cocaine dependence, in sustained remission and a history of cannabis abuse. He further found that she had a current GAF score of 55. Id.

DISCUSSION

The administrative law judge applying the GRID regulations found that Nicely was disabled and eligible for an award of SSI benefits as of July 8, 2004, the date she turned 55 years of age. However, with respect to her abilities prior to that date the administrative law judge after proceeding through the 5-step sequential evaluation process found that Nicely was not disabled. Those steps are as follows.

The administrative law judge at step one of the sequential evaluation process found that Nicely did not engage in substantial gainful work activity since April 30, 1999, the alleged onset date. Tr. 23.

At step two of the sequential evaluation process, the administrative law judge found that Nicely had the following severe impairments: "degenerative disc disease of the lumbar spine, fibromyalgia, a generalized anxiety disorder and a history of chemical dependence." Id. The administrative law judge further found that Nicely's "allegations of hepatitis C and cerebrovascular accident are non-severe impairments"*fn39 and that "[m]edical evidence shows that [Nicely] remains abstinent from chemical dependence, and has been sober for a number of years." Tr. 24.

At step three of the sequential evaluation process the administrative law judge found that Nicely's impairments did not individually or in combination meet or equal a listed impairment. Tr. 24.

At step four of the sequential evaluation process the administrative law judge found that Nicely could not perform her past relevant work as a post office clerk but that Nicely prior to July 8, 2004, had the residual functional capacity to perform a limited range of light work as defined in the regulations. Tr. 25-26. Specifically, the administrative law judge found that Nicely could perform light work except Nicely could only "occassionally understand remember and carry-out complex and detailed instructions, directions and tasks," had to have "a sit/stand option after thirty minutes" and could only "occasionally interact with the general public." Id. In so finding the administrative law judge rejected the opinion of Dr. Callahan that Nicely could not engage in full-time sedentary work and the opinion of Dr. Nedurian that Nicely could only engage in sedentary work. The administrative law judge did not point to any medical opinion regarding the physical functional abilities of Nicely that was contrary to the opinion of Dr. Nedurian and supportive of the finding that Nicely could engage in the physical exertional requirements of a limited range light work.

At step five, the administrative law judge based on a residual functional capacity of a limited range of light work as described above and the testimony of a vocational expert found that Nicely had the ability to perform unskilled light work as a collator and laundry sorter, and that there were a significant number of such jobs in the national economy and in the economy of the Northwestern region of Pennsylvania. Tr. 36

The administrative record in this case, as stated in footnote 6, is 792 pages in length and we have thoroughly reviewed that record. Nicely argues, inter alia, that the administrative law judge erred when he (1) failed to appropriately consider the opinions of treating medical providers, including Dr. Callahan, (2) failed to properly evaluate Nicely's subjective complaints, and (3) applied the GRID regulations mechanically and failed to give appropriate consideration to Nicely's borderline age situation. Those arguments have substantial merit. In addition to those errors, the administrative law judge erred at step two of the sequential evaluation process. We will begin with that error.

The Social Security regulations contemplate the administrative law judge considering whether there are any medically determinable impairments and then when setting a claimant's residual functional capacity considering the symptoms of both medically determinable severe and non-severe impairments. 20 C.F.R. § 404.1529. The determination of whether a claimant has any severe impairments, at step two of the sequential evaluation process, is a threshold test. 20 C.F.R. § 404.1520(c). If a claimant has no impairment or combination of impairments which significantly limit the claimant's physical or mental abilities to perform basic work activities, the claimant is "not disabled" and the evaluation process ends at step two. Id. If a claimant has any severe impairments, the evaluation process continues. 20 C.F.R. § 404.1520(d)-(g). A failure to find a medical condition severe at step two will not render a decision defective if some other medical condition was found severe at step two. However, all of the medically determinable impairments both severe and non-severe must be considered at step four when setting the residual functional capacity. The social security regulations mandate such consideration and this court has repeatedly so indicated. See, e.g., Christenson v. Astrue, Civil No. 10-1192, slip op. at 12 (M.D. Pa. May 18, 2011)(Muir, J.); Little v. Astrue, Civil No. 10-1626, slip op. at 19-21 (M.D.Pa. September 14, 2011)(Kosik, J.); Crayton v. Astrue, Civil No. 10-1265, slip op. at 32-35 (M.D.Pa. September 27, 2011); 20 C.F.R. §§ 404.1523, 404.1545(a)(2), 416.923 and 416.945(a)(2).

The record indicates that in addition to a generalized anxiety disorder Nicely was diagnosed on several occasions with bipolar disorder and depression. The failure of the administrative law judge to find those psychiatric conditions as medically determinable impairments, or to give an adequate explanation for discounting them, makes his decisions at steps two and four of the sequential evaluation process defective.

The error at step two of the sequential evaluation process draws into question the administrative law judge's residual functional capacity determination and assessment of the credibility of Nicely. The administrative law judge found that Nicely medically determinable impairments could reasonably cause Nicely's alleged symptoms but that Nicely's statements concerning the intensity, persistence and limiting effects of those symptoms were not credible prior to July 8, 2004. This determination by the administrative law judge was based on an incomplete and faulty analysis of all of Nicely's medically determinable impairments.

The administrative law judge rejected the opinion of Dr. Callahan, a treating physician, regarding the physical functional abilities of Nicely. The preference for the treating physician's opinion has been recognized by the Court of Appeals for the Third Circuit and by all of the federal circuits. See, e.g., Morales v. Apfel, 225 F.3d 310, 316-18 (3d Cir. 2000). When the treating physician's opinion conflicts with a non-treating, non-examining physician's opinion, the administrative law judge may choose whom to credit in his or her analysis, but "cannot reject evidence for no reason or for the wrong reason." Id. In choosing to reject the evaluation of a treating physician, an administrative law judge may not make speculative inferences from medical reports and may reject treating physician's opinions outright only on the basis of contradictory medical evidence. Id. An administrative law judge may not reject a written medical opinion of a treating physician based on his or her own credibility judgments, speculation or lay opinion. Id. An administrative law judge may not disregard the medical opinion of a treating physician based solely on his or her own "amorphous impressions, gleaned from the record and from his evaluation of the [claimant]'s credibility." Id. As one court has stated, "Judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor" because "lay intuitions about medical phenomena are often wrong." Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir 1990).

The administrative law judge in setting the residual functional capacity of Nicely at a limited range of light work only relies on his lay analysis of the bare medical records and his assessment of Nicely's credibility and her activities of daily living. Nicely's activities of daily living do not support the conclusion that she can engage in the physical exertional requirements of full-time light work (8 hours per day, 5 days per week) or other similar schedule. The testimony of Nicely regarding her activities of daily living (which the ALJ relies on) indicates that those activities were sporadic. Sporadic activities have long been considered by the Court of Appeals for this circuit as not establishing the ability to work. Smith v. Califano, 637 F.2d 968, 971-972 (3d Cir. 1981); Wright v. Sullivan, 900 F.2d 675, 682 (3d Cir. 1990). Anecdotal evidence of a claimant's sporadic activities is not a sufficient basis to reject the opinion of a treating physician. Id. As this court has noted "the law does not require a complete restriction from recreational and other activities as a prerequisite to a finding of disability." Rieder v. Apfel, 115 F.Supp.2d 496, 504-505 (M.D.Pa. 2000)(Munley, J.). As for the issue of credibility Morales clearly indicates that an administrative law judge may not reject a written medical opinion of a treating physician regarding a claimant's physical limitations based on his or her assessment of the claimant's credibility.

This case is troubling because if Nicely would have been limited to sedentary work she would have been entitled to benefits under the GRID regulations. In addition to rejecting the opinion of Dr. Callahan, the last administrative law judge who heard this case rejected the opinion of Dr. Nedurian even though the first administrative law judge who heard the case on November 20, 2002, accepted Dr. Neudurian's opinion that Nicely was limited to sedentary work. The last administrative judge oddly rejects Dr. Nedurian's opinion in part because he was not a treating physician and also engages in lay medical analysis when he states that Dr. Nedurian's assessment that Nicely "could not stand and/or walk for more than two hours total in an eight hour day . . . conflicts with his clinical findings." Furthermore, it is safe to assume that Dr. Nedurian in issuing his opinion not only relied on his physical examination of Nicely but on his review of the medical records up to that point, including Dr. Callahan's records of his treatment of Nicely.

Finally, there is merit to Nicely argument that the administrative law judge mechanically applied the GRID regulations. Several district courts in Pennsylvania have held that when a claimant is six or seven months shy of his or her 55th birthday, the administrative law judge must engage in borderline analysis and cannot mechanically apply the GRID regulations. See, e.g., Morealli v. Astrue, No. 08-CV-356, 2010 WL 654396 at *9 (W.D. Pa. Feb. 23, 2010); Itsik v. Astrue, No. 07-CV-1468, 2009 WL 382503 at *4 (W.D. Pa. Feb. 13, 2009). In these cases, it was held that it was error for the administrative law judge to fail to consider or address the borderline age issue because that consideration may have resulted in a change in the outcome of the case.

Our review of the administrative record reveals that the decision of the Commissioner is not supported by substantial evidence.

The vocational expert who testified at the administrative hearing on May 21, 2009, indicated that if Dr. Nedurian's limitations were accepted the only work available would be sedentary work. Tr. 789-792. The administrative law judge found that Nicely could not perform her prior relevant, semi-skilled light work and that she was limited to unskilled work. Consequently, if Dr. Nedurian's opinion was accepted under GRID Rule 201.6 Nicely would be considered disabled.

The district court can award benefits only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the plaintiff is disabled and entitled to benefits. Gilliland v. Heckler, 786 F.2d 178 (3d Cir.1986); Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir.1982). When faced with such cases, it is unreasonable for the court to give the administrative law judge another opportunity to consider new evidence concerning the disability because the administrative proceeding would only result in further delay in the receipt of benefits. See Livingston v. Califano, 614 F.2d 342, 345 (3d Cir.1980). The decision whether to reverse or remand lies within the discretion of the court. See, e.g., Gilliland, 786 F.2d at 185; Rini v. Harris, 615 F.2d 625, 627 (5th Cir.1980).

In the present case, we find that the record is extensive and well developed. The record as noted consists of 792 pages and includes the medical records of several doctors who have examined Nicely Substantial evidence in that record -- Dr. Callahan's disability opinion and Dr. Nedurian's opinion in conjunction with the testimony of the vocational expert -- indicate that Nicely is disabled and entitled to receive benefits without further extended delay. Under the circumstances, we see no reason to remand for further consideration of whether Nicely is disabled.

We have determined, therefore, that the decision of the Commissioner should be reversed with the direction that benefits be awarded to Nicely, as we find that substantial evidence does not support the decision that Nicely was not disabled under the Act. The Commissioner will be directed to award benefits to Nicely as of April 2, 2002, the date Dr. Nedurian issued a physical functional assessment which limited Nicely to sedentary work.

An appropriate order will follow.

A. RICHARD CAPUTO United States District Judge


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