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Campanaro v. Colvin

United States District Court, M.D. Pennsylvania

July 29, 2014

BRAD ALLEN CAMPANARO, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION TO VACATE THE DECISION OF THE COMMISSIONER AND REMAND THE CASE TO THE COMMISSIONER FOR FURTHER PROCEEDINGS

GERALD B. COHN, Magistrate Judge.

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Brad Campanaro's applications for social security disability insurance benefits and supplemental security income benefits. Plaintiff contends that the Administrative Law Judge ("ALJ") erred in failing to acknowledge several medically determinable impairments established by his medical records. Plaintiff also contends that the ALJ erred in discounting his treating physician's opinion and Plaintiff's testimony that Plaintiff cannot sit or stand still for more than fifteen minutes. Plaintiff contends that that the ALJ erred in discounting the opinion and his testimony because the ALJ cited to "inconsistencies" that were not actually inconsistent and ignored substantial, objective evidence that corroborated the opinion and his testimony. For the reasons that follow, the Court finds that the ALJ erred in ignoring many of Plaintiff's medically determinable impairments and erred in discounting his testimony and the opinion of his treating physician. Therefore, the Court recommends that the Commissioner's decision be vacated and Plaintiff's case be remanded for further proceedings.

II. Procedural Background

On February 6, 2011, Brad Allen Campanaro ("Plaintiff") protectively filed an application for Supplemental Security Income benefits under Title XVI of the Social Security Act and for disability insurance benefits ("DIB") under Title II of the Social Security Act. (Tr. 47, 139-147).[1]

On May 17, 2011, the Bureau of Disability Determination[2] denied this application, and Plaintiff filed a request for hearing on July 7, 2011. (Tr. 57-68, 79-80). On February 1, 2012, a hearing was held before an ALJ at which Plaintiff, who was represented by an attorney, and a vocational expert appeared and testified (Tr. 25-46). On March 9, 2012, the ALJ found that Plaintiff was not disabled and thus was not entitled to benefits. (Tr. 14-24). On May 2, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 13), which the Appeals Council denied on June 28, 2012, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-5).

On August 6, 2012, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On October 17, 2012, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 7, 8). On January 3, 2013, Plaintiff filed a brief in support of his appeal ("Pl. Brief") (Doc. 11). On February 4, 2013, Defendant filed a brief in response ("Def. Brief") (Doc. 12), and on February 19, 2013, Plaintiff filed a reply brief ("Pl. Reply") (Doc. 13). On May 1, 2014, the Court referred this case to the undersigned Magistrate Judge.

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether the denial is supported by substantial evidence. Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec. , 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood , 487 U.S. 552, 564 (1988); Hartranft v. Apfel , 181 F.3d 358, 360. (3d Cir. 1999); Johnson , 529 F.3d at 200. This is a deferential standard of review. See Jones v. Barnhart , 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence is satisfied without a large quantity of evidence; it requires only "more than a mere scintilla" of evidence. Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999). It may be less than a preponderance. Jones , 364 F.3d at 503. Thus, if a reasonable mind might accept the relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then the Acting Commissioner's determination is supported by substantial evidence and stands. Monsour Med. Ctr. v. Heckler , 806 F.2d 1185, 1190 (3d Cir. 1986).

IV. Review of ALJ Decision

To receive disability or supplemental security benefits, 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. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits show that he has a physical or mental impairment of such a 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." 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

A five-step evaluation process is used to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520; see also Plummer , 186 F.3d at 428. If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed any further. See 20 C.F.R. § 404.1520. The Commissioner must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity (RFC). Id . §§ 404.1520(e), 416.920(e).

The disability determination involves shifting burdens of proof. The initial burden rests with the claimant to demonstrate that she is unable to engage in past relevant work. If the claimant satisfies this burden, then the Commissioner must show that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala , 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of the Act lies with the plaintiff. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

At step two, the social security regulations contemplate that the administrative law judge first consider whether there are any medically determinable impairments and then determine whether any of the medically determinable impairments are "severe." 20 C.F.R. § 404.1529. An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. Id . § 404.1521; Basic work activities are the abilities and aptitudes necessary to do most jobs, such as walking, standing, sitting, lifting, pushing, seeing, hearing, speaking, and remembering. Id . An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual ability to work. Id . § 416.921; Social Security Rulings 85-28, 96-3p and 96-4p.

The determination of whether a claimant has any medically determinable, severe impairments 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. Id . § 404.1520(d)-(g). Thus, 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 and both severe and non-severe impairments are considered at subsequent steps.

However, failing to find an impairment to be medically determinable can render a decision defective at step two. This is because both severe and non-severe medically determinable impairments are considered at step three, in the RFC analysis, and at steps four and five. 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.); Shannon v. Astrue, Civil No. 11-289, slip op. at 39-41 (M.D. Pa. April 11, 2012) (Rambo, J.); Bell v. Colvin, Civil No. 12-634, slip op. at 23-24 (M.D. Pa. Dec. 23, 2013) (Nealon, J.); 20 C.F.R. §§ 404.1523, 404.1545(a)(2). While limitations attributed to impairments which are medically determinable but are not severe must be considered at later steps in the evaluation, alleged limitations attributable to impairments which are not medically determinable must not be considered at later steps. 20 C.F.R. §§ 416.908, 416.923; see also Rutherford v. Barnhart , 399 F.3d 546, 554, n.7 (3d Cir. 2005) (to be considered, an impairment must be medically determinable, but need not be "severe").

At step 3, the ALJ is required to develop a record sufficient to allow judicial review of the step three finding. Conclusory findings at step three may preclude meaningful judicial review where there is insufficient development of the record or explanation of findings. Burnett v. Comm'r of Soc. Sec. Admin. , 220 F.3d 112 (3d Cir. 2000); Lopez v. Comm'r of Soc. Sec. , 270 F.Appx. 119, 121 (3d Cir. 2008) ("Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis. Rather, the function of Burnett is to ensure that there is sufficient development of the record and explanation of findings to permit meaningful review."). However, if the ALJ elsewhere discusses the factors pertinent to an evaluation of the listings, and the court is able to engage in meaningful review, the ALJ's step three determination can be supported by substantial evidence:

In this case, the ALJ's decision, read as a whole, illustrates that the ALJ considered the appropriate factors in reaching the conclusion that Jones did not meet the requirements for any Listing, including Listing 3.02(A). The ALJ's opinion discusses the evidence pertaining to chronic obstructive and restrictive lung disease, specifically referencing "[p]ulmonary function studies... consistent with moderately severe obstructive and restrictive defects, " but pointing to the lack of pulmonary complications, and a finding that claimant's lungs were clear. Also, the ALJ noted that claimant's medical history showed no frequent hospitalization or emergency treatments.

Lopez , 270 F.Appx. at 121-22 (3d Cir. 2008); Hur v. Barnhart , 94 F.Appx. 130, 133 (3d Cir. 2004)("There is no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record.").

If the ALJ finds that the claimant has at least one medically determinable, severe impairment, but that claimant's impairments, considered in combination, do not meet a listing, the ALJ must undertake an RFC analysis to determine if the claimant can perform past relevant work or other work in the national economy. RFC is an assessment of the most a claimant can do on a regular and continuing basis despite credible limitations. 20 C.F.R. § 404.1545(a). It is an administrative assessment, based on all the evidence, of how a claimant's impairments and related symptoms affect her ability to perform work-related activities. Id . 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... However, the underlying determination is a medical determination, i.e., that the claimant... 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.

Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law and Procedure in Federal Courts, 344-345 (2014) (emphasis added). An ALJ must not overly rely on activities of daily living. Fargnoli v. Massanari , 247 F.3d 30, 40 n.5. (3d Cir.2001) ("[S]poradic and transitory activities cannot be used to show an ability to engage in substantial gainful activity.").

An ALJ must weigh medical opinions in making an RFC assessment. The social security regulations state that when the opinion of a treating physician is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, " it is to be given controlling weight. 20 C.F.R. § 416.927(d)(2). Section 404.1527(c) establishes the factors to be considered by the ALJ when the opinion of a treating physician is not given controlling weight. Under subsections (c)(1) and (c)(2), the opinions of treating physicians are given greater weight than opinions of non-treating physicians and opinions of examining physicians are given greater weight than opinions of non-examining physicians, as discussed above. Section 404.1527(c)(2) also differentiates among treating relationships based on the length of the treating relationship and the nature and extent of the treating relationship. Subsection 404.1527(c)(3) provides more weight to opinions that are well supported, which means that "[t]he more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion." Subsection 404.1527(c)(4) states that "the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion." Subsection 404.1527(c)(5) provides more weight to specialists, and subsection 404.1527(c)(6) allows consideration of other factors which "tend to support or contradict the opinion."

In Morales v. Apfel , 225 F.3d 310 (3d Cir. 2000), the Third Circuit set forth the standard for evaluating the opinion of a treating physician, stating that:

A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially "when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time." Plummer [v. Apfel , 186 F.3d 422, 429 (3d Cir.1999)] (quoting Rocco v. Heckler , 826 F.2d 1348, 1350 (3d Cir.1987)); see also Adorno v. Shalala , 40 F.3d 43, 47 (3d Cir.1994); Jones, 954 F.2d at 128; Allen v. Bowen , 881 F.2d 37, 40-41 (3d Cir.1989); Frankenfield v. Bowen , 861 F.2d 405, 408 (3d Cir.1988); Brewster, 786 F.2d at 585. The ALJ may choose whom to credit but "cannot reject evidence for no reason or for the wrong reason." Plummer , 186 F.3d at 429 (citing Mason v. Shalala , 994 F.2d 1058, 1066 (3d Cir.1993)). The ALJ must consider the medical findings that support a treating physician's opinion that the claimant is disabled. See Adorno , 40 F.3d at 48. In choosing to reject the treating physician's assessment, an ALJ may not make "speculative inferences from medical reports" and may reject "a treating physician's opinion outright only on the basis of contradictory medical evidence" and not due to his or her own credibility judgments, speculation or lay opinion. Plummer , 186 F.3d at 429; Frankenfield v. Bowen , 861 F.2d 405, 408 (3d Cir.1988); Kent, 710 F.2d at 115.

Id. at 317-318.

When using internal inconsistencies to discredit a treating physician's report, the internal discrepancies must be truly contradictory:

The ALJ's decision to discredit Dr. Picciotto, the consultative psychological examiner who evaluated Brownawell in December 2000, is similarly improper. Dr. Picciotto provided a medical source statement which indicated that Brownawell "had poor ability (no ability) [sic] to function in several areas." A.R. at 303. The ALJ discounted this finding because it "was inconsistent with and unsupported by the text of the evaluation and the clinical signs and findings in the remaining medical record." Id. In support of this contention, the ALJ notes that Dr. Picciotto "stated that [Brownawell] has no ability to maintain attention or concentration[, but] he reported in the text of the evaluation that [she] has good focus, good attention, and good concentration." These assessments are not necessarily contradictory, however, as one assessment was describing Brownawell's condition at the time of Dr. Picciotto's examination and the other reflected Dr. Picciotto's assessment of Brownawell's ability to function in a work setting. As discussed supra, this Court has admonished ALJs who have used such reasoning, noting the distinction between a doctor's notes for purposes of treatment and that doctor's ultimate opinion on the claimant's ability to work. See Morales , 225 F.3d at 319.

Brownawell v. Comm'r Of Soc. Sec. , 554 F.3d 352, 356 (3d Cir. 2008).

Given the recognition of the great weight that should attach to the professional judgment of treating physicians, it is axiomatic that an ALJ must provide an adequate explanation for any decision which chooses to disregard a treating physician's findings regarding illness, impairment, and disability. Moreover, when an ALJ fails to adequately explain why a treating physician's medical assessment has been discounted, a remand for further development of the factual record is proper. See, e.g., Burnett v. Commissioner of Social Security , 220 F.3d 112, 119 (3d Cir. 2000) (failure to adequately discuss competing medical evidence compels remand of ALJ decision); Shaudeck v. Comm'r of Social Security , 181 F.3d 429 (3d Cir. 1999); Allen v. Brown , 881 F.2d 37, 40-41 (3d Cir. 1989).

Where a disability determination turns on an assessment of the level of a claimant's pain, the social security regulations provide a framework under which a claimant's subjective complaints are to be considered. See 20 C.F.R. § 404.1529. Such cases require the ALJ to "evaluate the intensity and persistence of the pain or symptom, and the extent to which it affects the individual's ability to work." Hartranft v. Apfel , 181 F.3d 358, 362 (3d Cir. 1999). Cases involving an assessment of subjective reports of pain "obviously require[ ]" the ALJ "to determine the extent to which a claimant is accurately stating the degree of pain or the extent to which he or she is disabled by it." Id . Pursuant to the social security regulations, subjective symptoms, such as pain, shortness of breath, and fatigue, will only be considered to affect a claimant's ability to perform work activities if such symptoms result from an underlying physical or mental impairment that has been demonstrated to exist by medical signs or laboratory findings. 20 C.F.R. § 404.1529(b). Once a medically determinable impairment which results in such symptoms is found to exist, the Commissioner must evaluate the intensity and persistence of such symptoms to determine their impact on the claimant's ability to work. 20 C.F.R. § 404.1529(b). SSR 96-4p provides that "allegations about the intensity and persistence of the symptoms must be considered with the objective medical abnormalities, and all other evidence in the case record, in evaluating the functionally limiting effects of the impairment(s)." Id.

V. Relevant Facts in the Record

Plaintiff was born on February 28, 1963, and was classified by the regulations as a "younger individual" through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 47). He has at least a high school education and past relevant work as an electronic technician and a truck driver. (Tr. 20). Plaintiff is insured through December 31, 2015. (Tr. 150). Plaintiff reported on his Disability Report and Function Reports that he could feed his animals, do chores if needed, and make dinner. (Tr. 172). He reported that he could clean once a week, mow the lawn once a week for two hours during summer, go shopping twice a month for an hour, do laundry without assistance, and go hunting and fishing once a year "when the pain isn't bad, " although Plaintiff has to "watch walking too far or standing too long." (Tr. 173, 174). He also reported that he could not sleep comfortably because of pain and can no longer sit for long periods of time, lift heavy objects, or bend over. (Tr. 172). He reported that he can walk for no more than one block at a time. (Tr. 176).

At the hearing before the ALJ, Plaintiff testified that he suffers from "pulling and tingling going up [his] legs" whenever he walks up stairs. (Tr. 31). Plaintiff testified that he could walk no more than halfway up his block before he has tingling and pain in his legs that requires him to stop. (Tr. 31). Plaintiff also testified that he can only stand in one place for ten minutes at a time and suffers the same problems when sitting still (Tr. 32). He testified that his pain medications were helping. (Tr. 33). He testified that his former supervisor at his most recent job allowed him to "get up and stand or move around and constantly... walk to the bathroom and come back." (Tr. 33). He testified that he was fired when a new supervisor arrived and was not tolerant of his need to move around constantly. (Tr. 35). Plaintiff discussed the side effects of his medicine, and explained that he could drive no more than fifty minutes while on his strongest dose of pain medication. (Tr. 37-38). He testified that he could engage in daily activities, but only with breaks, and that his daughter would usually do "harder" cleaning, like vacuuming and laundry. (Tr. 38). Plaintiff testified that he made an effort to try and switch careers when he was no longer able to work as a truck driver by receiving vocational training and working in electronics. (Tr. 39-40).

The vocational expert testified that Plaintiff was unable to do any of his past relevant work. (Tr. 43). Then, the ALJ provided the vocational expert with a series of hypotheticals. First, he restricted Plaintiff to sedentary work, with no foot control operations, and work that only occasionally required stairs, ladders, balancing, stopping, kneeling, crouching, or crawling. (Tr. 43). The vocational expert testified that Plaintiff could work as a bonder semiconductor (400 jobs locally, 2, 700 in several regions, 68, 000 nationally), a surveillance system monitor (600 jobs locally, 3, 300 in several regions, and 83, 000 nationally), and a call out operator (1, 600 locally, 10, 000 in several regions, and 252, 000 nationally). (Tr. 43). The vocational expert testified that with the additional limitations of never climbing ladders and a "sit/stand" option, the same jobs would remain, but would decline in numbers by about ...


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