UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA
November 19, 2012
KENNETH E. KAUMANS, PLAINTIFF
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT
The opinion of the court was delivered by: Judge Caputo
(Complaint Filed 7/29/2011)
The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Kenneth E. Kaumans's claim for social security disability insurance benefits.
On July 20, 2009, Kaumans filed protectively*fn1 an application for disability insurance benefits. Tr. 10, 27, 54 and 129.*fn2 The application was initially denied by the Bureau of Disability Determination*fn3 on February 23, 2010. Tr. 56-60. On March 8, 2010, Kaumans requested a hearing before an administrative law judge. Tr. 10 and 61-62. After about 10 months had elapsed, a hearing was held on January 3, 2011. Tr. 25-46. On March 7, 2011, the administrative law judge issued a decision denying Kaumans's application. Tr. 10-20. On April 1, 2011, Kaumans filed a request for review with the Appeals Council and on June 7, 2011, the Appeals Council concluded that there was no basis upon which to grant Kaumans's request. Tr. 1-6 and 102. Kaumans was not represented by counsel during the administrative proceedings.
Kaumans then obtained counsel and filed a complaint in this court on July 29, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on December 27, 2011, when Kaumans filed a reply brief.
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 Kaumans meets the insured status requirements of the Social Security Act through December 31, 2012. Tr. 10, 112, 123 and 129.
Kaumans, who was born in the United States on January 19, 1961, withdrew from secondary school in 1977 after completing the 9th grade. Tr. 32-33, 115, 139 and 353. Testing when Kaumans was attending school revealed that he had a learning disability. Tr. 170. During his schooling he attended special education classes. Tr. 139. Kaumans attempted to obtain a General Equivalency Diploma but failed the test, even though he had a tutor. Tr. 33 and 337
Kaumans has past relevant employment*fn5 as a tile helper which was described by a vocational expert as unskilled, very heavy work, and as a boiler room operator described as skilled, medium work. Tr. 43-44 and 134. *fn6 Records of the Social Security Administration reveal that Kaumans had earnings spanning the years 1977 through 2007 as follows;
1977 $667.59 1978 699.62 1979 1148.45 1980 1253.95 1981 1819.06 1982 1239.50 1983 1848.60 1984 4065.76 1985 3081.99 1986 7774.30 1988 10577.05 1988 14215.75 1989 7178.31 1990 10739.61 1991 3426.88 1992 10786.14 1993 9368.50 1994 12272.16 1995 13915.29 1996 14612.05 1997 14512.52 1998 16635.78 1999 19116.99 2000 19750.79 2001 18972.52 2002 18559.25 2003 17386.47 2004 26107.77 2005 30870.80 2006 30198.18 2007 26467.93
Tr. 124. Kaumans's total earnings during those years were $369,269.20. Id.
Kaumans alleges that he became disabled on April 30, 2009, because of both physical and psychiatric problems, including diabetes and depression. Tr. 133. Kaumans has not worked since April 30, 2009. Id.
Because there were legal errors committed during the administrative proceedings we will remand this case to the Commissioner for further consideration.
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).
Another critical requirement is that the Commissioner adequately develop the record. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)("The ALJ has an obligation to develop the record in light of the non-adversarial nature of benefits proceedings, regardless of whether the claimant is represented by counsel."); Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Fraction v. Bowen, 787 F.2d 451, 454 (8th Cir. 1986); Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001); Smith v. Apfel, 231 F.3d 433. 437 (7th Cir. 2000); see also Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 2085 (2000)("It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits[.]"). If the record is not adequately developed, remand for further proceedings is appropriate. Id. 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 claims. See 20 C.F.R. §404.1520; 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,*fn7 (2) has an impairment that is severe or a combination of impairments that is severe,*fn8 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn9 (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.*fn10
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; 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).").
Before we address the administrative law judge's decision and the arguments of counsel, we will review some of Kaumans's medical records.
The medical records reveal that Kaumans was treated for both physical and psychiatric problems. Kaumans was treated, inter alia, for diabetes with peripheral neuropathy impacting the lower extremities, high blood pressure, gastrointestinal problems, major depression and anxiety. At the administrative hearing held on January 3, 2011, Kaumans testified that he had numbness from his knees to his feet, stabbing pain, and feeling like his feet are frostbitten. Tr. 35-37. He indicated that the neuropathy limits his ability to be on his feet. Id. Kaumans further testified that he felt tired and depressed, which his medications made worse. Tr. 36, 41 and 43.
On February 21, 2008, Kaumans was treated at the emergency department of the Chambersburg Hospital, Chambersburg, Pennsylvania, for nausea, vomiting and diarrhea. Tr. 177-178. The diagnosis was that Kaumans suffered from acute gastroenteritis with uncontrolled diabetes. Id. Kaumans was examined and discharged the same day. Id. At discharge he was instructed to follow-up with his treating physician, H. Frederick Martin, M.D.,*fn11 "if no better in 4 days or sooner if worse." Id. It was noted that Kaumans's current medications were Glucophage,*fn12 Protonix,*fn13 enalapril*fn14 and Glucotrol.*fn15 Id.
During 2008 Kaumans was treated for diabetes at Mission of Mercy in Gettysburg, Pennsylvania, on several occasions. Tr. 244-256. Mission of Mercy is an nonprofit organization that provides free health care, free dental care and free prescription medications to the uninsured and under-insured. Clinics are located in Arizona, Maryland Pennsylvania and Texas. The administrative record reveals that Kaumans was treated at Mission of Mercy on the following dates: January 17, March 13, July 17, September 4, October 30, and December 18, 2008. Tr. 244-252. The records further indicate that Kaumans was being treated for diabetes with neuropathy, high blood pressure and gastroesophageal reflux disease. Id.
On January 21, 2009, Kaumans was voluntarily admitted to the Roxbury
Treatment Center ("Roxbury"), Shippensburg, Pennsylvania, because of
depression and suicidal ideations.*fn16 Tr. 180-210
and 226.*fn17 The psychiatrist who treated Kaumans at
Roxbury was Fauzia Sheikh, M.D. Id. After an initial evaluation at
Roxbury, Kaumans was taken to the Gettysburg Hospital for a physical
examination and diagnostic tests, including blood tests.*fn18
Tr. 180 and 281-285. After being examined at the Gettysburg
returned to Roxbury. Id.
At Roxbury it was observed that Kaumans "present[ed] with a disheveled
appearance, depressed mood, and flat affect" but "had fair eye
contact" and "was oriented to person, time, [place] and situation."
Tr. 180. The diagnosis upon admission at Roxbury was major depressive
disorder, recurrent; rule out impulse control disorder, not otherwise
specified; rule out dysthymia and double depression;*fn19
and a mild learning disability. Tr. 197. Kaumans was given a
Global Assessment of Functioning (GAF) score of 15-20.*fn20
Kaumans stayed at Roxbury until he was discharged on January 23, 2009. Tr. 180 and 226. At discharge Kaumans "denied suicidal or homicidal ideations or hallucinations" and "verbalized an understanding of his after care plan." Tr. 226. The discharge diagnosis was that Kaumans suffered from major depressive disorder, recurrent; rule out impulse control disorder, not otherwise specified; rule out dysthymia and double depression; and a mild learning disability. Id. He was given a GAF score of 55-60, representing a moderate psychiatric impairment. The discharge plan was for Kaumans to follow-up with Mission of Mercy in Gettysburg for medication management and for therapy at Adams-Hanover Counseling Services, Inc. ("Adams-Hanover"), located in Hanover, Pennsylvania. Id. It was noted that Kaumans would have an appointment with Dr. Martin, his primary care physician on February 7, 2009. Id. Kaumans's medications at discharge were Protonix, aspirin, enalapril, HCTZ (hydrochlorothiazide),*fn21 metformin, glipizide, Neurontin(generic gabapentin) and nortriptyline.*fn22 Tr. 182.
The record reveals that Kaumans was treated at Mission of Mercy on June 11, July 23 and August 27, 2009. Tr. 254-256. The record from August 27, 2009, indicates that Kaumans was suffering from depression and was prescribed amitriptyline (brand name Elavil).*fn23 Tr. 256. Also, there are medical records from Dr. Martin dated October 15, 2008 and February 7 and 21, March 30, April 1, May 18, June 27, July 17, August 12 and September 9, 2009 which indicate that Kaumans was treated for diabetes, high blood pressure and depression. Tr. 264-279. A record from April 1, 2009, reveals that Kaumans was on the medication Neurontin which is used to treat neuropathy and the medication amitriptyline used to treat depression. Tr. 265.
Kaumans was admitted to the Gettysburg Hospital on April 2, 2009, for observation and discharged on April 3, 2009. Tr. 293-301. He was diagnosed with hyponatremia,*fn24 type 2 diabetes and acute gastroenteritis. Id. The record of this hospitalization reveals that at the time Kaumans was on the following medications: Protonix, enalapril, metformin, Neurontin, aspirin, hydrochlorothiazide, glipizide and nortriptyline. Id.
A medical record dated July 14, 2009, reveals that Kaumans was prescribed the following medications: Protonix, aspirin, enalapril, hydrochlorothiazide, metformin, glipizide and nortriptyline and was suffering from diabetes, high blood pressure, gastroesophageal reflux disease and a history of depression and nervous breakdown. Tr. 239-240.
On July 29, 2009, Kaumans underwent a neuropsychological evaluation by Sheree Contres, Psy.D., a licensed psychologist and clinical neuropsychologist,*fn25 at Brownstone Psychological Services, Manchester, Pennsylvania. Tr. 228-233. After conducting a clinical interview and mental status examination of Kaumans and administering a battery of psychological, neuropsychological and intelligence tests to Kaumans, Dr. Contres concluded that Kaumans had a Full Scale IQ of 94 placing him in the lower limits of the average range of intelligence. Tr. 229. Dr. Contres noted that Kaumans exhibited a depressed mood and variable affect, and reported thoughts of killing himself, which he indicated he would not do. Tr. 229. Dr. Contres found that Kaumans's neurocognitive processes were impaired for problem solving, mental flexibility, and localization. Dr. Contres opined that he should not be placed in a position where he had to make decisions that impacted himself or others, he is limited to routine tasks, and does better with repetition. She determined he also needs to be kept on the subject at hand because of difficulty with his ability to stay focused to the task. She confirmed his diagnosis of major depression and gave him a GAF score of 48, representing a severe psychological impairment. Tr. 232-233.
On August 20, 2009, Kaumans visited the emergency department at the Gettysburg Hospital complaining of nausea and vomiting. Tr. 305-306. He was diagnosed as suffering from acute gastritis and gastroenteritis. Id.
Kaumans visited the emergency department at the Gettysburg Hospital on August 23, 2009, and was found to be suffering from hypoglycemia, low blood sugar. Tr. 312.
On September 14, 2009, Kaumans visited the emergency department at the Gettysburg Hospital complaining of anxiety. Tr. 314. The attending physician's diagnosis was anxiety and Kaumans was prescribed the medication Ativan.*fn26 Tr. 315.
On October 27, 2009, Michael Suminski, Ph.D., a psychologist, reviewed Kaumans's medical records on behalf of the Bureau of Disability Determination. Tr. 317-333. Dr. Suminski found that Kaumans suffered from a learning disability and major depressive disorder. Tr. 319. Dr. Suminski further found that Kaumans had moderate difficulties in maintain concentration, persistence or pace; and Kaumans had moderate limitations in his ability to carry out detailed instructions, accept instructions and respond appropriately to criticism from supervisors, and respond appropriately to changes in the work setting. Tr. 317-318 and 331. Dr. Suminski concluded that Kaumans was "able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from his impairments." Tr. 320. Dr. Suminski did not conduct a clinical interview of Kaumans but merely reviewed the medical records.
After Dr. Suminski opined that Kaumans had the mental capacity to engage in competitive work, Kaumans on December 23, 2009, received treatment from Michael Sullivan, M.D.,*fn27 at Mission of Mercy in Gettysburg. Tr. 374. Dr. Sullivan's patient progress notes of this appointment are difficult to decipher. Id. We can discern that Dr. Sullivan did prescribe the medication amitriptyline and diagnosed Kaumans as suffering from insulin-dependent diabetes mellitus (IDDM) with neuropathy. Id. There was one other medication prescribed by Dr. Sullivan but we are unable to decipher his handwriting. Id. However, at the top of the patient progress note it is stated (in a different handwriting most likely by a nurse or physician's assistant) that Kaumans needed refills of enalapril, metformin, glipizide, amitriptyline and Neurontin. Id.
On December 23, 2009, Dr. Sullivan completed a document on behalf of Kaumans which related to a state court child support proceeding. Tr. 366. In that document Dr. Sullivan stated that Kaumans was "continuously disabled (unable to work)" from April, 2009 through April, 2010. Id. Dr. Sullivan stated that Kaumans's disabling impairments were high blood pressure, anxiety, depression, left sacroiliac strain and diabetes mellitus. Id. Dr. Sullivan noted that he first treated Kaumans on December 18, 2008. Id. However, Dr. Sullivan oddly indicated that the latest appointment with Kaumans was on December 23, 2008. We conclude that Dr. Sullivan meant to indicate December 23, 2009, in light of Dr. Sullivan's patient progress notes of December 23, 2009, which we reviewed above. Tr. 374.
On February 3, 2010, Kaumans was examined by Jeffrey Nolt, M.D., on behalf of the Bureau of Disability Determination. Tr. 336-342. Dr. Nolt conducted a review of Kaumans's medical history and medications and performed a clinical interview. Id. The results of a physical examination revealed that Kaumans was unable to bend or stoop to the floor to pick up anything effectively; he had decreased monofilament test in his lower extremities and there was a little bit of blister on the right big toe; and his left shoulder revealed decreased range of motion. Id. Dr. Nolt concluded that Kaumans suffered from type 2 diabetes with complications including diabetic neuropathy*fn28 and possibly diabetic nephropathy;*fn29 back pain, probably musculoskeletal; possible coronary artery disease; and depression. Tr. 339. Dr. Nolt concluded that Kaumans could frequently lift and carry 10 pounds and occasionally lift 20 pounds; stand and walk 1 hour or less during an 8-hour workday; sit 8 hours with alternating sitting/standing at will; and pushing and pulling limited to the lifting and carrying capacity. Tr. 341. Dr. Nolt found that Kaumans could occasionally bend and kneel but never stoop, crouch, balance or climb. Tr. 342.
Kaumans was treated at Mission of Mercy in Gettysburg on February 17, April 28, June 30, August 25, and October 20, 2010. Tr. 375-379. The patient progress notes of those appointments reveal that Kaumans was repeatedly diagnosed as suffering from diabetes mellitus with neuropathy and high blood pressure and was prescribed the medications enalapril, metformin, glipizide, Protonix, amitriptyline and Neurontin. Id.
On December 22, 2010, Dr. Sullivan completed a document on behalf of Kaumans entitled "Medical Source Statement of Ability to Do Work-Related Activities (Physical)." Tr. 380-385. In that document Dr. Sullivan limited Kaumans to less than full-time sedentary work. Id. He stated that Kaumans could only occasionally lift and/or carry 10 pounds; he could only sit 3 hours, stand 2 hours and walk 1 hour at one time without interruption; in an 8-hour workday he could only sit for a total of 3 hours, stand 2 hours and walk 1 hour; he could never climb stairs, ramps, ladders or scaffolds and never balance, stoop, kneel, crouch and crawl; he could never tolerate exposure to unprotected heights, moving mechanical parts, and vibrations; and he could not walk a block at a reasonable pace on rough or uneven surfaces. Id. Dr. Sullivan further stated that these limitations first appeared in 2006 and have lasted or will last for a period of 12 consecutive months. Tr. 385.
Dr. Sullivan also on December 22, 2010, completed on behalf of Kaumans a document entitled "Medical Source Statement of Ability to Do Work-Related Activities (Mental)." Tr. 387-389. In that document Dr. Sullivan stated that Kaumans had moderate limitations in his ability to make judgment on simple work-related decisions, understand and remember complex instructions, make judgment on complex work-related decisions, interact appropriately with supervisors and co-workers, and respond appropriately to usual work situations and to changes in a routine work setting. Id. Dr. Sullivan further found that Kaumans had a marked limitation in his ability to carry out complex instructions. Id.
Kaumans received treatment for his mental health conditions at Adams-Hanover. Tr. 352-359. He was initially evaluated at Adams-Hanover on January 13, 2010, by two psychiatrist, Ray C. Davis, M.D., and Edward Coronado, M.D. Tr. 352-354.*fn30 After conducting a clinical interview and a mental status examination, Dr. Davis and Dr. Coronado concluded that Kaumans suffered from major depression and gave him a GAF score of 45, representing serious symptoms. Id. During the mental status examination, the two psychiatrists noted that Kaumans appeared older that his stated age; he was very circumstantial and had to be redirected on numerous occasions; he had loud speech but it was normal in rate and rhythm; and his mood ranged "from irritable to sad, to smile." Id.
On February 4 and April 30, 2010, Kaumans was prescribed the antidepressant medication amitryptyline by Adams-Hanover. Tr. 358 On July 23, 2010, Dr. Coronado completed a document on behalf of Kaumans entitled "Employability Assessment Form" in which he indicated that Kaumans was temporary disabled from July 23, 2010 through January 23, 2011 because of major depression. Id. Dr. Coronado further stated that his assessment was based on review of medical records and a clinical history. Id. On August 3 and September 14, 2010, Dr. Coronado indicated that Kaumans was suffering from severe depression and continued Kaumans's antidepressant medication. Tr. 356-357.
The administrative law judge at step one of the sequential evaluation process found that Kaumans has not engaged in substantial gainful activity since April 30, 2009, the alleged disability onset date. Tr. 12.
At step two, the administrative law judge found that Kaumans suffers from the following severe impairments: "hypertension, diabetes mellitus with peripheral neuropathy, depression and history of learning disability." Id.
At step three, the administrative law judge found that Kaumans does not have an impairment or combination of impairments which meet or medically equal one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. Id. As part of the step three analysis the administrative law judge found that Kaumans had moderate difficulties with social functioning and with respect to concentration, persistence and pace. Tr. 13.
At step four, the administrative law judge found Kaumans could not perform his prior relevant medium and very heavy work but had the residual functional capacity to perform a range of simple, unskilled light work "in that he is able to stand/walk 2 hours per day; sit for 6 or more hours per day with the need for a sit/stand option; and perform occasional climbing, balancing, stooping, kneeling, crouching, and crawling." Tr. 14. The administrative law judge further provided that Kaumans "is limited to only simple, repetitive tasks; only occasional changes in the work setting; and only occasional interaction with supervisors, co-workers, or public." Id. In so finding the administrative law judge rejected the opinions of Kaumans's treating physicians and the opinion of Dr. Nolt, who examined Kaumans on behalf of the Bureau of Disability Determination and found that Kaumans could only stand and walk 1 hour or less during an 8-hour workday and never stoop, crouch, balance or climb. With respect to Dr. Nolt's opinion that Kaumans could only stand and walk 1 hour or less during and 8-hour day and never stoop, crouch, balance or climb, the administrative law judge in rejecting that opinion did not point to any contrary medical opinion. He merely engaged in his own lay analysis of the medical records.
During the hearing on June 8, 2010, the administrative law judge took testimony from a vocational expert to determine whether or not jobs exist in the economy for an individual of Kaumans's age, education, work experience, and the above described residual functional capacity. The vocational expert testified that Kaumans could perform the unskilled jobs of small products assembler, electrical accessory assembler, and production assembler, and that there were a significant numbers of such jobs in the regional and national economies. Tr. 44-45.
At step five, the administrative law judge concluded that Kaumans was not disabled because he could perform the jobs identified by the vocational expert. Tr. 19.
Kaumans makes several arguments including that the ALJ did not adequately develop the record and did not account for all of Kaumans's credibly established limitations in the hypothetical question asked of the vocational expert, particularly Kaumans's moderate limitation with respect to concentration, persistence and pace. We find substantial merit in those arguments.
During the administrative hearing held on January 3, 2011, Kaumans informed the administrative law judge that he had recent medical treatment and that there were other medical records that were not submitted. Tr. 28-29. The administrative law judge prior to taking the testimony of Kaumans and the vocational expert informed Kaumans who was not represented by counsel that he would not make a decision until he received all of the records. Tr. 29. At the end of the hearing the administrative law judge again informed Kaumans that he would take steps to obtain the additional medical records. Tr. 45-46. In his decision dated March 7, 2010, the administrative law judge states as follows: "I left the record open and requested these records. However, the only information sent was the initial evaluation dated January 15, 2010, which was already in the file." Tr. 14-15. A review of the administrative record does not reveal the actual steps taken by the ALJ to obtain any additional medical records, including who he sent the request to or what he requested. Furthermore, it does not indicate that he informed Kaumans prior to issuing a decision of the fact that no further records were obtained.
After Kaumans obtained counsel and filed an action in this court, counsel for Kaumans obtained the additional medical records and attached them to his brief. The records consist of an evaluation performed at Adams-Hanover on November 9, 2009, and therapy/treatment records from November 2 and December 21, 2010. The evaluation of November 9, 2009, reveals that Kaumans was diagnosed as suffering from major depressive disorder, single episode, severe without psychotic features (DSM Code 296.23); anxiety disorder, not otherwise specified (DSM Code 300.00); and rule out dysthymia. Kaumans was given a GAF score of 45, representing serious symptoms. The evaluation was signed by the therapist Robert A. Sette on November 9, 2009, and a psychiatrist on December 12, 2009. The therapy/treatment record dated November 2, 2010, was signed by therapist Sette and appears to have been signed by a psychiatrist. That records reveals that Kaumans was suffering from major depressive disorder. The therapy/treatment record from December 21, 2010, was signed by Dr. Coronado and states that Kaumans was suffering from major depressive disorder. There is no indication that the ALJ after the administrative hearing took steps to obtain a mental residual functional capacity assessment from Dr. Coronado or therapist Sette which would have been appropriate in light of Kaumans's unrepresented status.
The administrative law judge failed adequately to develop the record. The primary reason for remanding this case is that failure. As one court has correctly stated [a] proceeding will be marked by unfairness when the ALJ fails to exercise his or her duty to fully develop the record prior to making a disability determination. When a claimant is unrepresented in social security proceedings, the ALJ has a heightened duty to assist the claimant in developing a full and fair record. Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.2003). When a claimant appears at a hearing without counsel, the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts. The adequacy of an ALJ's investigation will be determined on a case-by-case basis. The essential inquiry is whether the incomplete record reveals evidentiary gaps [that] result in prejudice to the claimant.
Rosenberger v. Commissioner of Social Security, 2009 WL 3124754 (W.D. Pa 2009)(citations and quotations marks omitted).
This is a case where it is obvious that the record was not adequately developed. At the hearing the administrative law judge was made aware of other medical records. However, the record fails to reveal what steps he took to obtain those medical records and he did not give Kaumans's an opportunity to supplement the record.
There was no attempt by the administrative law judge to obtain an assessment from Kaumans's treating physicians regarding Kaumans's mental functional capacity. The administrative law judge had a responsibility to investigate the facts and develop the arguments both for and against granting benefits. See Kinney v. Astrue, Civil No. 10-104, slip op. at 52 (M.D. Pa. July 27, 2010)(Doc. 11)(Muir, J.). In this case he did not fulfill that responsibility. The ALJ did not fulfill his duty to ensure he issued a decision based upon a fully developed record.
Kaumans argues that the failure to include a moderate limitation in concentration, persistence and pace in the hypothetical question asked of the vocational expert is an error warranting remand for a new hearing. Cases from this circuit support Kaumans's position. The Court of Appeals for the Third has held that if an administrative law judge poses a hypothetical question to a vocational expert that fails to reflect all of the applicant's impairments that are supported by the record, the vocational expert's opinion cannot be considered substantial evidence. Ramirez v. Barnhart, 373 F.3d 546, 552-553 (3d Cir. 2004); see also Corona v. Barnhart, 431 F.Supp.2d 506, 516 (E.D.Pa. 2006)("the ALJ's determination that Plaintiff suffers mild restrictions in activities of daily living, moderate difficulties in maintaining social functioning and moderate difficulties in maintaining concentration is not properly reflected in her hypothetical question to the VE."); Warfle v. Astrue, Civil No. 10-1255, slip op. at 20 (M.D. Pa. May 5, 2011)(Muir, J.)("It is incumbent on the administrative law judge to include in a hypothetical question all the limitations that are supported by the records."); Little v. Astrue, Civil No. 10-1626, slip op. at 18-19 (M.D.Pa. September 14, 2011)(Kosik, J.)(same). Although the administrative law judge limited Kaumans to simple, unskilled work, this does not adequately reflect a moderate limitation in concentration, persistence or pace. Id. There are clearly many unskilled jobs that require an employee to maintain concentration, persistence and pace. There is no evidence in the record from a vocational expert that a moderate limitation in those areas would not impact Kaumans's ability to maintain employment as a small products assembler, electrical accessory assembler, and production assembler. We can only speculate as to what the erosion in the number of jobs available would have been if a moderate limitation in concentration, persistence or pace would have been included in the hypothetical question.*fn31
In addition to the error when questioning the vocational expert, 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)(Caputo, J.); 20 C.F.R. §§ 404.1523, 404.1545(a)(2), 416.923 and 416.945(a)(2).
The additional records attached to Kaumans's brief reveal that Kaumans suffered from an anxiety disorder in addition to depression. This is one more reason why the ALJ's failure to develop the record calls for a remand of the case to the Commissioner for further proceedings.
Kaumans also argues that the ALJ did not evaluate properly the medical opinions. We agree. Dr. Sullivan, one of Kaumans's treating physicians, on December 22, 2010, provided a physical residual functional capacity assessment which limited Kaumans to less than full-time work. The ALJ purports to rely on Dr. Nolts's assessment of February 3, 2010, but rejects several of Dr. Nolts's findings which are similar to the findings of Dr. Sullivan, e.g., Kaumans could never stoop, crouch, balance or climb.
The administrative law judge rejected the opinion of Dr. Sullivan. 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).
In rejecting Dr. Sullivan's opinion the administrative law judge did not point to any contrary medical opinion which supported his physical residual functional capacity assessment but engaged in his own lay analysis of the medical records and accepted some of Dr. Nolts's findings and rejected others. The administrative law judge failed to give an adequate reason for rejecting the opinion of Dr. Sullivan. In setting the residual functional capacity at light work, the administrative law judge did not point to any functional assessment performed by a treating physician or a physician who examined Kaumans or reviewed the medical records which was consistent with his determination. Instead, he engaged in his own lay analysis of the bare medical records and picked and choosed some of Dr. Nolts's findings. There is a lack of substantial evidence supporting the administrative law judge's residual functional capacity assessment and rejection of Dr. Sullivan's opinion.
We recognize that the residual functional capacity assessment must be based on a consideration of all 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. See Burnett v. Commissioner of Social Sec. Admin., 220 F.3d 112, 121-122 (3d Cir 2000). However, 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. See 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."); 20 C.F.R. § 404.1545(a). As two commentators have explained:
Sometimes administrative law judges assert that they -and not physicians - have the right to make residual functional capacity determinations. In fact, it can reasonably be asserted that the ALJ has the right to determine whether a claimant can engage in sedentary, light, medium, or heavy work. The ALJ should not assume that physicians know the Social Security Administration's definitions of those terms. However, the underlying determination is a medical determination, i.e., that the claimant can lift five, 20, 50, or 100 pounds, and can stand for 30 minutes, two hours, six hours, or eight hours.
That determination must be made by a doctor. Once the doctor has determined how long the claimant can sit, stand or walk, and how much weight the claimant can lift and carry, then the ALJ, with the aid of a vocational expert if necessary, can translate that medical determination into a residual functional capacity determination. Of course, in such a situation a residual functional capacity determination is merely a mechanical determination, because the regulations clearly and explicitly define the various types of work that can be performed by claimants, based upon their physical capacities.
Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law and Procedure in Federal Courts, 287-88 (2011)(emphasis added); see also Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000)("An ALJ commits legal error when he makes a residual functional capacity determination based on medical reports that do not specifically explain the scope of claimant's work-related capabilities."); Zorilla v. Chater, 915 F.Supp. 662, 667 (S.D.N.Y. 1996)("The lay evaluation of an ALJ is not sufficient evidence of the claimant's work capacity; an explanation of the claimant's functional capacity from a doctor is required."). The administrative law judge cannot speculate as to a claimant's residual functional capacity but must have medical evidence, and generally a medical opinion regarding the functional capabilities of the claimant, supporting his determination. Id.
In this case there was no assessment of the physical functional capabilities of Kaumans from a physician which supported the administrative law judge's residual functional capacity assessment and the bare medical records and other non-medical evidence were insufficient for the administrative law judge to conclude that Kaumans had the residual functional capacity to engage in light work on a full-time basis.
Our review of the administrative record reveals that the decision of the Commissioner is not supported by substantial evidence. We will, therefore, pursuant to 42 U.S.C. § 405(g) vacate the decision of the Commissioner and remand the case for further proceedings.
An appropriate order will be entered.
A. RICHARD CAPUTO United States District Judge