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Shirley Gray v. Michael J. Astrue Commissioner of Social Security

May 1, 2012

SHIRLEY GRAY
v.
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM ORDER

AND NOW, this 1st day of May 2012, upon careful and independent consideration of the Report and Recommendation of U.S. Magistrate Judge Lynne A. Sitarski (Doc. No. 11), as well as Defendant's objections thereto (Doc. No. 12), it is hereby ORDERED that Judge Sitarski's Report and Recommendation (Doc. No. 11) is APPROVED and ADOPTED, subject to the clarifications set forth herein. As such, the Commissioner's objections (Doc. No. 12) are OVERRULED accordingly. Plaintiff Shirley Gray's Request for Review (Doc. Nos. 1, 6) is GRANTED. This matter is REMANDED to the Commissioner for further proceedings consistent with the Report and Recommendation and this Order. The Clerk of Court is directed to close this case for statistical purposes.

Defendant, the Commissioner of the Social Security Administration ("SSA" or "Commissioner"), lodges two objections to Magistrate Judge Sitarski's recommendation that we remand this matter to the Commissioner for further development of the record: (1) Judge Sitarski incorrectly stated the burden of proof at "Step Five" of the sequential process used to evaluate disability; and (2) Judge Sitarski erroneously concluded that the ALJ failed to properly develop the record. (See Doc. No. 12). This Court reviews de novo the portions of a Magistrate Judge's Report to which specific objections have been filed. 28 U.S.C. § 636(b)(1)(C). In doing so, we may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. Id. Here, we accept Judge Sitarski's findings and recommendations and overrule the Commissioner's objections thereto.

The federal regulations set forth a five-step sequential process for evaluating disability in the Social Security context. 20 C.F.R. § 404.1520. At issue here is so-called "Step Five," at which the Commissioner assesses a claimant's "residual functional capacity and . . . age, education, and work experience to see if [the claimant] can make an adjustment to other work."

20 C.F.R. § 404.1520(a)(4)(v). If so, the Commissioner will find the claimant not disabled, and vice versa. Id.

The Commissioner objects to Judge Sitarski's observation that, at Step Five, "the burden shifts to the Commissioner to show that the claimant, given his or her age, education and work experience, has the ability to perform specific jobs that exist in the economy. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979)." (Doc. No. 11, at 3). Specifically, the Commissioner contends that only the burden of production shifts to the Commissioner to demonstrate that alternate jobs exist in the national economy that the claimant can perform. (Doc. No. 12, at 2). As such, the SSA believes it satisfies its burden merely by showing that such jobs exist, not that a claimant such as Ms. Gray actually "has the ability to perform" those jobs. (Id.).

This Step Five burden confusion stems from the Third Circuit's less-than-precise jurisprudence on the topic. Compare Palmer v. Comm'r of Soc. Sec., 410 Fed. App'x 490, 491-92 (3d Cir. 2011) (non-precedential) ("In point of fact, we recently have indicated that the Commissioner has the burden of proof at step five.") (citation omitted); Smith v. Comm'r of Soc. Sec., 631 F.3d 632, 633-34 (3d Cir. 2010) ("The claimant bears the burden of proof at steps one through four, and the Commissioner bears the burden of proof at step five.") (citation omitted); Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007) ("At step five, the burden of proof shifts to the Social Security Administration to show that the claimant is capable of performing other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and residual functional capacity."); and Ramirez v. Barnhart, 372 F.3d 546, 550-51 (3d Cir. 2004) ("Unlike some of the earlier stages in the evaluation process, the burden of proof at step five is on the agency."), with Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) ("In this final step, the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability.") (internal quotation omitted) and Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999) ("At [Step Five], the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability.") (all emphases mine).

We can resolve this apparently inconsistent precedent by recognizing that "[i]n the administrative process, the burden of proof generally encompasses both a burden of production of evidence and a burden of persuasion about what the evidence shows." Clarification of Rules Involving Residual Functional Capacity Assessments, 68 Fed. Reg. 51,153, 51,155 (Aug. 26, 2003). In other words, the "burden of production" is part of the "burden of proof" at Step Five. And at Step Five, the SSA has recognized that "a limited shift in the burden of proof" occurs. Id. Although the claimant bears the ultimate burden of proving his or her disability, the SSA "must provide evidence that demonstrates that jobs exist in significant numbers in the national economy that [the claimant] can do, given [his or her] RFC [residual functional capacity], age, education, and work experience" to deny benefits at Step Five. Id. Stated differently, at Step Five the SSA is "required to prove that there is other work that [the claimant] can do, given [his or her] RFC, age, education, and work experience." Id. However, the SSA need not prove a claimant's RFC. Id.

In her Report and Recommendation, Judge Sitarski referred to the "burden" on the Commissioner in general, without specifying whether she meant the "burden of proof" or "burden of production." We believe our preceding explanation should clarify any ambiguity regarding the proper allocation of the Step Five burden. And in any event, the Step Five burden has little to do with Judge Sitarski's (proper) determination that we should remand this matter for additional development of the record.

In brief, we agree with Judge Sitarski's thorough and well-reasoned analysis regarding the ALJ's failure to properly develop the record in Ms. Gray's case. (See Doc. No. 11, at 6-15). The Third Circuit has emphasized that "[a]n ALJ owes a duty to a pro se claimant to help him or her develop the administrative record." Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). That did not happen here. Rather, the ALJ told Gray, who was proceeding pro se, that he may need to obtain additional mental health records from Gray's provider. The fact that Gray offered to get the records but ultimately failed does not negate the ALJ's duty; under the circumstances, the ALJ should have undertaken to obtain those records himself.

In particular, at the administrative hearing, Gray testified that she was under the care of a psychiatrist and participating in weekly psychotherapy sessions at WES Health Center. A letter from Gray's therapist confirmed her ongoing treatment. This should have put the ALJ on notice that WES had records which could very well bear on Gray's current mental health. Instead of requesting these records, the ALJ inexplicably concluded that "there is no record of any psychiatric treatment beyond the evaluation performed at WES in August, 2008 and a possible second visit in October, 2008." Technically, that statement may be true. But it is only true because the ALJ did not request potentially critical mental health records that he knew existed. See Maes v. Astrue, 522 F.3d 1093, 1097-98 (10th Cir. 2008) ("when the ALJ considers an issue that is apparent from the record, he has a duty of inquiry and factual development with respect to that issue.").

The Commissioner argues that the ALJ was not required to seek-out this information. According to the Commissioner, the "regulations explain that recontacting a physician or other medical source is necessary only if the physician's or psychologist's records are 'inadequate for us to determine whether [the claimant is] disabled . . . .'" (Doc. No. 12, at 4) (citing 20 C.F.R. §§ 404.1512(e), 416.912(e)).*fn1 With that, we agree. But the Commissioner goes further, in essence asserting that the ALJ enjoys unbridled discretion to decide what or how much evidence is "adequate" or "inadequate" to make a disability determination. (See Doc. No. 12, at 5 ("As the finder of fact, it is the ALJ who has the discretion to determine whether the evidence is adequate to make a decision . . . . As discussed above, the ALJ has the discretion to make a determination as to whether the evidence is adequate to make a decision.")). We cannot agree with the Commissioner's extreme position on this point; to do so would entail endorsing the abdication of judicial review over an ALJ's factual development process.

In the Third Circuit, the amount of deference a reviewing court should afford to an ALJ's decisions regarding the development of an adequate factual record in the Social Security context, e.g., whether to (re)contact one medical provider or another because the present record is "inadequate," is an open question. See Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 204-05 (3d Cir. 2008) (noting the "important prerequisite" that "recontact will proceed if 'the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled,'" but not opining on the question of deference). Some courts have taken a highly deferential approach such as the one endorsed by the Commissioner. See, e.g., Masbeth v. Comm'r of Soc. Sec., No. 06-6076, 2008 WL 2637415, at *8 (D.N.J. June 27, 2008) ("because the ALJ did not find the reports . . . to be inadequate to make a determination, . . . the ALJ was not required to recontact these physicians under 20 C.F.R. §§ 404.1512(e)."); Moore v. Comm'r of Soc. Sec., No. 08-CV-2018, 2009 WL 500732, at *14 (C.D. Ill. Feb. 27, 2009) ("Judicial review of administrative decisions is deferential, and courts must respect the authority of an ALJ to decide how much evidence is necessary in a given case. Kendrick v. Shalala, 998 F.2d 455, 458 (7th Cir.1993) ('[I]t is always possible to do more. How much evidence to gather is a subject on which district courts must respect the [Commissioner's] reasoned judgment.')."); Spurgeon ex rel. K.M. v. Comm'r of Soc. Sec., No. 1:09-cv-430, 2010 WL 1882158, at *11 (S.D. Ohio Apr. 12, 2010) (Opining that "the amount of evidence to gather is a determination which is left up to the ALJ.") (citing Kendrick, 998 F.2d at 458).

Respectfully, we disagree with these decisions to the extent they place an ALJ's development of the record beyond judicial review. As our sister court in the Eastern District of North Carolina aptly ...


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