United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
an action brought under Section 1631(c)(3) of the Social
Security Act, 42 U.S.C. § 1383(c)(3) (incorporating 42
U.S.C. §405(g) by reference), seeking judicial review of
the final decision of the Commissioner of Social Security
(“Commissioner”) denying Plaintiff Lori
Hazlak's (“Ms. Hazlak”) claim of supplemental
security income(“SSI”) under Title XVI of the
Social Security Act. This matter has been referred to the
undersigned United States Magistrate Judge to prepare a
report and recommended disposition pursuant to the provisions
of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal
Rules of Civil Procedure.
reasons expressed herein, and upon detailed consideration of
the arguments raised by the parties in their respective
briefs, it is respectfully recommended that the
Commissioner's decision be VACATED and that the case be
REMANDED to the Commissioner to conduct a new administrative
hearing pursuant to sentence four of 42 U.S.C. §405(g).
Procedural History and Background
Ms. Hazlak's fourth round of application(s) for Social
Security benefits. Ms. Hazlak applied for disability
insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act on May 15, 2006
and May 22, 2006, respectively, which were denied on July 25,
2006. (Tr. 20; 88.) There is nothing in the administrative
record to suggest that Ms. Hazlak further pursued the Appeals
Council's denial of these initial applications. On May 4,
2007, Ms. Hazlak protectively filed claims for disability
insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act, alleging a
disability onset date of April 29, 2006. (Tr. 74.) These 2007
applications were denied initially on July 23, 2007.
(Id.) Ms. Hazlak requested a hearing before an
Administrative Law Judge (“ALJ”), which took
place on December 8, 2008, in which she appeared and
testified pro se. (Id.) On January 12,
2009, the ALJ determined Ms. Hazlak was not disabled. (Tr.
81.) After the ALJ denied her applications, Ms.
Hazlak sought review of her claim by the Appeals Council,
which remanded her case to another ALJ. (Tr. 79-84.) On May
23, 2011, the ALJ issued an unfavorable decision. (Tr. 82.)
Ms. Hazlak sought review of her claim by the Appeals Council,
which denied her appeal on May 18, 2012. (Tr. 82-85.) Ms.
Hazlak filed another application for disability insurance
benefits under Title II of the Social Security Act on August
27, 2012, which was denied on December 14, 2012. (Tr. 88.)
There is nothing in the administrative record to suggest that
Ms. Hazlak further pursued the Appeals Council's denial
of this application. Instead, just under one year later, Ms.
Hazlak filed again for supplemental security income under
Title XVI of the Social Security Act. (Tr. 118.) This fourth
application is now before the Court.
Hazlak is a high school graduate and attended beauty school
thereafter. (Tr. 42.) Ms. Hazlak lives with her husband and
their three children. (Tr. 119.) She has previous work
experience as a disability aide, a cashier, and a laborer.
(Tr. 157-158.) Her pain began in November 2005, which she
states came from standing on her feet all day, lifting boxes
of frozen dough, and bending and kneeling to stock shelves.
(Tr. 174.) Ms. Hazlak stopped working on April 26, 2006. (Tr.
October 18, 2013, Ms. Hazlak protectively filed a claim for
supplemental security income under Title XVI of the Social
Security Act, alleging a disability onset date of June 1,
2011. (Tr. 118-128.) Ms. Hazlak alleges she is
disabled because of the following: “herniated discs in
back, scoliosis of spine, muscle spasms, degenerative disc
disease, chronic pain, depression, anxiety, problems
controlling bladder, arthritis, and degenerative disc disease
in back, a central herniated disc.” (Tr. 156.) Ms.
Hazlak was born on November 12, 1971, and at the time of the
protected filing date,  Ms. Hazlak was forty one-years old and
thus was defined as a “younger individual” under
the regulations promulgated under the authority of the
Hazlak has been receiving ongoing treatment for both physical
and mental health problems. She presented to BPS Orthopedics
on April 27, 2012, complaining of severe back pain. (Tr.
192.) After an examination, Dr. Martinez ordered an x-ray of
her lumbar spine, which revealed osteophytosis of the
proximal lumbar vertebra with degenerative disc disease at
¶ 1-L2. (Tr. 191-192.) On May 22, 2012, Ms. Hazlak
underwent an MRI of her lumbar spine, which revealed minimal
disc herniation at ¶ 5-S1, a mild disc bulge at ¶
1-2, and mild neural foramen narrowing at ¶ 3 through
L5. (Tr. 198.)
Bureau of Disability Determination Section referred Ms.
Hazlak to undergo a consultative examination. (Tr. 209.) On
November 27, 2012, Dr. Willner conducted a physical
examination and reviewed Ms. Hazlak's available medical
records. (Tr. 205-205.) Dr. Willner observed that Ms. Hazlak
likely had degenerative disc disease in her back, herniated
central disc in her back, and arthritis in her back. (Tr.
206.) Dr. Willner determined that a psychological evaluation
would help outline her allegations of depression and anxiety.
Hazlak presented to Dr. Suraci at Suraci & Srinivasan
Urologic on March 12, 2013, complaining of frequent urinary
tract infections. (Tr. 229.) On March 22, 2013, Ms. Hazlak
underwent a renal ultrasound in connection with blood in her
urine. (Tr. 292.) The results were unremarkable. (Tr. 293.)
On March 28, 2013, Ms. Hazlak underwent a CT of her abdomen
and pelvis in connection with left flank pain, nausea, and
urine frequency. (Tr. 289.) The results revealed a 2mm
non-obstruction calcification in the interpolar region of her
Hazlak followed up with Dr. Suraci on April 2, 2013,
complaining of abdominal pain, back pain, mild dysuria,
frequent urination, excessive nighttime urination, occasional
odor to the urine, occasional stress incontinence, occasional
urgency, and occasional urgency incontinence. (Tr. 265.) Ms.
Hazlak underwent a cystoscopy on April 16, 2013. (Tr. 262.)
On May 28, 2013, Ms. Hazlak followed up with Dr. Suraci,
complaining of frequent urination, excessive urination at
night, occasional stress incontinence, and urgency
incontinence. (Tr. 255.) On August 13, 2013, Ms. Hazlak
followed up with Dr. Suraci, complaining of excessive
urination at night, occasional stress incontinence,
occasional urgency, and occasional urgency incontinence. (Tr.
September 9, 2013, Ms. Hazlak presented to Dr. Prisuta of
Family Practice Benton complaining of chronic back pain. (Tr.
338.) She reported to Dr. Prisuta that she takes her
medication faithfully but it is not working, and that Dr.
Martinez told her to “live with it, ” as it is
not fixable by surgery. (Id.) Dr. Prisuta prescribed
her medications and informed her to follow up in 2 weeks if
her symptoms have not decreased. (Tr. 340.)
Prisuta referred Ms. Hazlak to the psychiatry department at
Geisinger Clinic. (Tr. 391.) On October 1, 2013, Ms. Hazlak
presented to Dr. Bharucha for further assessment of her mood.
(Id.) She complained that someone close to her was
sexually assaulted, which has caused her great stress and
worrying. (Id.) She reported she has no energy to do
anything, and has gained 30 pounds in the past two years
because she cannot exercise. (Id.) Ms. Hazlak
revealed that her two sons told her that they think she
favors her daughter over them, and also that she is having
strains in her marriage. (Id.) After talking with
Ms. Hazlak, and conducting a mental health status evaluation,
Dr. Bharucha diagnosed her with major depression, probable
ADD, learning disorder (not otherwise specified), and
assessed her GAF score at 50. Dr. Bharucha recommended Ms.
Hazlak participate in psychotherapy and he prescribed her
Hazlak returned to the psychiatry department at Geisinger
Clinic on October 8, 2013. (Tr. 400.) Licensed clinical
social worker Mr. Johnson conducted a psychosocial assessment
and he recommended that Ms. Hazlak work on alleviated
depression symptoms, stabilizing her sleep patterns, and
continue with therapy. (Tr. 404.)
October 9, 2013, Ms. Hazlak followed up with Dr. Prisuta
complaining of chronic back pain with spasms. (Tr. 319.) She
also reported that occasionally she would fall asleep during
the day, and suffers from severe snoring. (Id.) She
requested a sleep study. (Id.) Dr. Prisuta referred
Ms. Hazlak to undergo a sleep study, as well as physical
therapy. (Tr. 321.)
Hazlak returned to therapy with Mr. Johnson on October 24,
2013, and reported that she has been depressed all day, every
day, and that she is not sleeping well. (Tr. 409.) She
continued therapy with Mr. Johnson on November 7 and November
21, 2013. (Tr. 415-425.) At Ms. Hazlak's last therapy
session, it was recommended to her that she continue
treatment because of her depression, mood, and anxiety. (Tr.
Hazlak started physical therapy on October 28, 2013. (Tr.
377.) The physical therapist noted that her lumbar range of
motion was limited to 75% for flexion and 100% for extension,
with severe pain with range of motion in both directions.
(Id.) Her physical therapist recommended she attend
therapy two days per week for four weeks. (Id.)
November 25, 2013, Dr. Bermudez assessed Ms. Hazlak's
physical RFC after reviewing the medical evidence of record
that was available to him. (Tr. 93-95.) Dr. Bermudez assessed
that Ms. Hazlak could: occasionally lift and/or carry
(including upward pulling) twenty pounds; frequently lift
and/or carry (including upward pulling) ten pounds; stand
and/or walk (with normal breaks) for a total of about six
hours per eight-hour workday, sit (with normal breaks) for a
total of about six hours per eight-hour workday; and no
restrictions for push and/or pull (including operation of
hand and/or foot controls). (Tr. 93-94.) Dr. Bermudez
determined that Ms. Hazlak had postural limitations, noting
that she could occasionally stoop and climb
ladders/ropes/scaffolds; frequently crouch; and no limits for
climbing ramp/stairs, crouching, balancing, and kneeling.
(Tr. 94.) Dr. Bermudez also assessed that Ms. Hazlak had no
manipulative, visual, or communicative limitations.
(Id.) Dr. Bermudez determined Ms. Hazlak had
environmental limitations, and that she should avoid
concentrated exposure to vibration. (Tr. 95.)
Hazlak underwent a sleep study on November 25, 2013, which
revealed that she suffered from mild obstructive sleep apnea.
(Tr. 472.) The attending physician recommended Ms. Hazlak use
a CPAP machine, to use extreme caution driving if feeling
sleepy, and to undergo a clinical sleep medicine evaluation.
December 12, 2013, Ms. Hazlak returned to Dr. Bharucha for a
follow up. (Tr. 492.) Ms. Hazlak reported that she was not
doing well, and that she stopped seeing her therapist.
(Id.) Dr. Bharucha noted that her home life is in
disarray, and that he suspected she might have ADD.
(Id.) Dr. Bharucha observed that her mood was
dysphoric and anxious, her affect had some range, and her
insight and judgment were fair. (Tr. 493.)
Bureau of Disability Determination Section referred Ms.
Hazlak to undergo a consultative psychological examination.
(Tr. 428.) On December 23, 2013, Dr. Yohey conducted a
clinical interview and mental status examination. (Tr.
426-435.) Dr. Yohey observed that Ms. Hazlak's affect
appeared sad. (Tr. 431.) Dr. Yohey noted that Ms. Hazlak was
able to retain and repeat four digits backwards, falling
below average. (Id.) Dr. Yohey observed that Ms.
Hazlak had problems with speed in counting backwards by
5's from 100, and that her pace was slow and it was
obvious she was thinking hard. (Id.) Dr. Yohey noted
that though Ms. Hazlak claimed that she had trouble with
basic math, she was able to answer fairly quickly, and
correctly, what 6 times 8 equaled. (Tr. 432.) Ultimately, Dr.
Yohey diagnosed Ms. Hazlak with depressive disorder, not
otherwise specified and generalized anxiety disorder. (Tr.
January 9, 2014, Dr. Yohey completed a medical source
statement of mental ability to do work-related activities.
(Tr. 436-438.) Dr. Yohey opined that Ms. Hazlak has mild
limitations in her ability to understand, remember, and carry
out short, simple instructions; moderate limitations in her
ability to make judgments on simple work-related decisions;
moderate limitations in her ability to understand, remember,
and carry out detailed instructions; marked limitations in
her ability to make judgments on complex work-related
decisions; moderate limitations in her ability to interact
appropriately with supervisor(s), coworkers, and the public;
and marked limitations in her ability to respond
appropriately to usual work situations and to changes in a
routine work setting. (Tr. 436-437.)
January 13, 2014, Dr. Chiampi completed a psychiatric review
technique (“PRT”) form and mental RFC assessment
after reviewing the records available on that date. (Tr.
92-93; 95-97.) Dr. Chiampi determined that Ms. Hazlak's
mental impairment did not meet any of the Listings'
criteria but he assessed that her mental impairments do
result in a mild restriction of activities of daily living,
moderate difficulties maintaining social functioning,
moderate difficulties maintaining concentration, persistence,
or pace, and one or two repeated episodes of decompensation.
(Tr. 92.) Dr. Chiampi found that Ms. Hazlak has marked
limitations in the following: the ability to understand and
remember detailed instructions and the ability to carry out
detailed instructions. (Tr. 96.) Dr. Chiampi found that Ms.
Hazlak has moderate limitations in the following: the ability
to maintain attention and concentration for extended periods;
the ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary
tolerances; the ability to complete a normal workday and
workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; the ability
to accept instructions and respond appropriately to criticism
from supervisors; the ability to get along with coworkers or
peers without distracting them or exhibiting behavioral
extremes; the ability to respond appropriately to changes in
the working setting; and the ability to set realistic goals
or make plans independently of others. (Tr. 96-97.) Dr.
Chiampi opined that Ms. Hazlak has mild coping problems, and
that her depressive disorder and generalized anxiety disorded
reduces her social functioning mildly. (Tr. 97.) Ultimately,
Dr. Chiampi assessed that although Ms. Hazlak is a slow
learner, she is capable of adequate judgment, reasoning, and
memory functioning to carry out simple tasks. (Tr. 96.)
January 16, 2014, Ms. Hazlak's claims were denied at the
initial level of administrative review. (Tr. 99.) At this
level of review, the adjudicator found that Ms. Hazlak had
the following medically determinable impairments: spine
disorders, affective disorders, and anxiety disorders. (Tr.
92.) The adjudicator determined that Ms. Hazlak was
“not disabled” because she had the RFC to perform
the following occupations: ticket taker, sorter, surveillance
system monitor. (Tr. 98.) On January 27, 2014, Ms. Hazlak
filed a request for an administrative hearing. (Tr. 107.)
January 30, 2014, Ms. Hazlak returned to Dr. Bharucha for a
follow up. (Tr. 520.) Ms. Hazlak complained that the winters
are very difficult for her from the standpoint of mood and
pain. (Id.) She reported that she was having
multiple psychosocial stressors in her life, including a
court date for the sexual assault of someone close to her,
marital problems, and the denial of her disability
Hazlak presented to Columbia Pain Management on April 11,
2014, on referral from Dr. Prisuta. (Tr. 635.) After an
assessment and examination, Ms. Hazlak's medication was
increased and she was recommended to receive a sacroiliac
joint steroid injection for her pain. (Tr. 637.)
Hazlak returned to Dr. Bharcuha on May 19, 2014. (Tr. 706.)
She reported that she was continuing to struggle with chronic
pain, unstable mood, and difficulties managing her children.
(Id.) Dr. Bharchua recommended that she stop using
Cymbalta, as suggested by Dr. Marino. (Id.)
Eventually, Ms. Hazlak ceased care with Dr. Bharucha, as he
indicated that he was returning her care to Dr. Prisuta
because she was doing so well. (Tr. 935.)
Hazlak underwent another sleep study on July 22, 2014. (Tr.
771.) Dr. Marino noted that her propensity to fall asleep was
borderline abnormal, and that the study supported the
diagnosis of hypersomnia. (Id.) Dr. Marino again
suggested that Ms. Hazlak taper off some of her medication
and then complete another sleep study. (Id.)
September 2, 2014, Ms. Hazlak underwent a successful breast
reduction surgery, in hopes of alleviating back and shoulder
pain. (Tr. 841; 896.) On January 5, 2015, Ms. Hazlak followed
up for her breast reduction surgery, complaining of
continuing chronic back pain. (Tr. 981.) The attending
physician assistant opined that her pain was most likely
related to nerve pain. (Id.)
February 25, 2015, Dr. Prisuta authored a medical opinion
statement of physical ability to do work-related activities.
(Tr. 444-47.) Dr. Prisuta opined that Ms. Hazlak could
occasionally lift and/or carry no more than ten pounds;
frequently lift and/or carry less than ten pounds; and sit
(with normal breaks) for a total of less than two hours per
eight-hour workday. (Tr. 445.) Dr. Prisuta determined that
Ms. Hazlak must alternate every 15 minutes between sitting,
standing, and walking to relieve discomfort. (Id.)
Dr. Prisuta assessed that Ms. Hazlak must have the
opportunity to shift at will from sitting or standing and
walking, and also need to lie down at unpredictable intervals
during a work shift. (Tr. 445-46.) Ultimately, Dr. Prisuta
opined that Ms. Hazlak cannot work due to chronic low back
pain, sleep apnea, and depression. (Tr. 446.)
March 4, 2015, Ms. Candlish completed a medical source
statement of mental ability to do work-related activities.
(Tr. 1063-1065.) Ms. Candlish opined that Ms. Hazlak's
outlook was fair in her abilities to remember work-like
procedures, to understand, remember, and carry out very short
and simple instructions, to maintain regular attendance, to
work in coordination with or proximity to others without
being duly distracted, make simple work-related decisions,
and deal with normal work stress. (Tr. 1064.) Ms. Candlish
opined that Ms. Hazlak did not possess the abilities to
understand and remember detailed instructions, to carry out
detailed instructions, to set realistic goals or make plans
independently of others, or to deal with the stress of
semiskilled and skilled work. (Id.) Ms. Candlish
assessed that Ms. Hazlak's limitations are influenced by
interaction of reported physical pain, observed anxiety,
difficulty regulating affecting responses, social anxiety,
misinterpreting social interactions, and modest level of
insight, impulsiveness, and distractibility. (Id.)
Ms. Candlish opined that Ms. Hazlak may loser her temper in
conflict or in or ambiguous situations, as she has exhibited
difficulty seeing perspectives of others. (Tr. 1065.)
March 5, 2015, Ms. Hazlak appeared and testified at a hearing
before Administrative Law Judge Therese A. Hardiman
(“the ALJ”) with the assistance of counsel. (Tr.
37-62.) In addition, impartial vocational expert Nadine
Hansis testified. (Id.) At the hearing, Ms. Hazlak
testified that her pain is a bigger issue, rather than her
depression. (Tr. 52.) Ms. Hazlak testified that she feels
like her mind is “going all the time” and it
“doesn't shut off.” (Tr. 47.) She reported
that she worries about everything all the time, that she
thinks the worst about everything, and that she is very
negative about everything. (Tr. 54.) Ms. Hazlak testified
that because she cannot exercise like people her age, she
gains weight, and then gets depressed about it.
(Id.) She reported that she can only stand 10-15
minutes before needing to sit or walk, and can only sit for
10 minutes before needing to stand. (Tr. 47.) Ms. Hazlak
reported that if she is on her feet for extended periods of
time, she gets severe pain in her lower back that starts out
as muscle spasms and then continues down her legs. (Tr. 51.)
Ms. Hazlak testified she can only walk to the end of her
driveway. (Tr. 47.) She explained that she takes medications
but is unsure as to the effectiveness. (Tr. 49.) For example,
Ms. Hazlak is prescribed Modafinil and she reported that
sometimes she falls asleep during the daytime. (Id.)
Ms. Hazlak testified that she utilizes a heating pad and a
TENS unit to reduce and control her symptoms.
(Tr. 50.) Her symptoms are aggravated if she is on her feet
too long, or if she picks up something that is too heavy.
Candlish authored a letter on March 7, 2015, in response to a
request for medical records in connection with Ms.
Hazlak's claim. (Tr. 1066-1068.) Ms. Candlish explained
that because of the particularly personal nature in the
progress notes that related to other family members, she
instead provided a summary of Ms. Hazlak's treatment,
rather than the actual progress notes. (Tr. 1066.) Ms.
Candlish reported that Ms. Hazlak initiated psychotherapy in
April 2014 and has attended sessions 29 times, approximately
two to three times per month. (Id.) Ms. Candlish
initially diagnosed Ms. Haslak with major depressive disorder
and generalized anxiety disorder. (Id.) The purpose
of treatment was to relieve her depression, reduce the level
and frequency of anxiety and panic, and improve parenting
responses with each of her children. (Id.) Ms.
Candlish explained that as therapy continued, Ms. Hazlak was
making progress, but once the winter months came, her pain
was exacerbated, which increased her symptoms of anxiety and
depression. (Id.) Ms. Candlish opined that her
current diagnosis is depressive disorder due to another
medical condition, recurrent/moderate, with anxious
distress-moderate to severe. (Tr. 1068.)
Hazlak presented to Dr. Marino at the Sleep Disorder Center
on April 9, 2014 for a sleep apnea follow up. (Tr. 606.) She
reported that she uses CPAP every night and though she no
longer snores, she does not feel more rested. (Id.)
Dr. Marino recommended that Ms. Haslak discontinue and modify
some of her medications, which could be contributing towards
her sleeping problems. (Tr. 611.)
19, 2014, Ms. Hazlak returned to Dr. Bharucha, complaining
that she continues to have the same problems as previously
reported. (Tr. 582.) Dr. Bharucha observed that Ms. Hazlak is
dysphoric, thinks negatively most of the time, and has a very
complicated home life. (Tr. 582-583.) Her ...