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Hynd v. Berryhill

United States District Court, M.D. Pennsylvania

May 7, 2018

TREVOR E. HYND, Plaintiff
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant

          Kane, Judge

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge

         I. Introduction

         In this Social Security Appeal, we are called upon to review the sufficiency of an Administrative Law Judge's (ALJ) assessment of the sole medical opinion in the record, that of a treating physician. We are asked to conduct this evaluation in the case of Trevor Hynd (“Mr. Hynd”), an individual who suffers from degenerative disc disease and fibromyalgia. (Tr. 31.) We undertake this review in a factual context in which the ALJ explained that the treating source's opinion was “given weight to the extent it is consistent with the objective radiographic and monthly examination findings.” (Tr. 40.) While it is not entirely clear from this cursory description what the basis was for the ALJ's decision to largely reject the treating source's opinion, the ALJ's assertions that a finding of disability was “not supported by the record as a whole” appears to be at odds in some material ways with the factual record, which documents a prolonged history of progressive pain associated with these impairments. Thus, in the instant case we are presented with an ALJ's decision to reject a treating source opinion which appears to be the only medical opinion on the record, and was the sole medical opinion considered by the ALJ. Since the medical record provides support for the treating source's opinion, and the ALJ's decision to discount this opinion in the absence of any other medical source opinion is not sufficiently supported, it is recommended that this case be remanded to the Commissioner for further proceedings.

         II. Statement of Facts and of the Case

         Mr. Hynd's health ailments related to his disability claims began in late 2009. (Tr. 296.) Mr. Hynd was uncertain what initially caused his back pain, and he reported that the pain originated in his back, shoulder, and neck and radiates into his arms and legs. (Id.) On July 17, 2013, Mr. Hynd protectively filed an application for disability benefits under Title II of the Social Security Act. (Tr. 215-216.) Two months later, Mr. Hynd filed an application for supplemental security income benefits under Title XVI of the Social Security Act. (Tr. 217-225.) Mr. Hynd claimed that he has been disabled since March 15, 2013, because of degenerative disc disease and fibromyalgia. (Tr. 268; 271.) At the time of Mr. Hynd's applications, and the onset of his alleged disability, he was in his early 30's and was considered a “younger individual” according to the regulations promulgated under the authority of the Act.[2] (Tr. 268.) Mr. Hynd is a high school graduate and attended one year of college. (Tr. 272.) His work history report includes employment spanning from 2001 through 2013, in which he worked in various positions in the retail sector, as well as positions in food service, telemarketing, and the military. (Tr. 300.)

         Mr. Hynd's disability applications were initially denied on October 17, 2013, (Tr. 102-110) and November 1, 2013, he sought a hearing to contest the denials. (Tr. 114-116.) On June 6, 2015, the ALJ conducted a hearing considering Mr. Hynd's disability applications. (Tr. 48-81.) At this hearing, the ALJ heard testimony from Mr. Hynd, Mr. Hynd's wife, and Michael Kibbler, an impartial vocational expert. (Id.) Mr. Hynd testified that he is disabled because of his pain condition. (Tr. 54.) He explained that his daily pain limits almost all activity, and he cannot keep a reliable schedule because the pain is unpredictable. (Id.) Mr. Hynd reported that approximately two to three times per week, his pain is so unbearable that he cannot get out of bed. (Tr. 55.) He explained that there are times when he awakens with pain for no particular reason. (Tr. 67.) Mr. Hynd reported that he can only sit in one position for up to an hour, because sitting too long precipitates the pain and causes pain and numbness throughout his legs. (Tr. 59-60.) He explained that he can comfortably lift up to five pounds only. (Tr. 60.) The ALJ also received and reviewed an abundance of medical records from multiple medical sources (Tr. 377-724), and had the benefit of an opinion from treating physician Dr. Upadhyay. (Tr. 717-724.) Dr. Upadhyay concluded that Mr. Hynd's impairments restrict him from prolonged sitting, standing, and walking, as well as restrict him from lifting, pushing, and carrying. (Tr. 717.) Dr. Upadhyay opined that Mr. Hynd's condition will slowly worsen as he gets older. (Id.) Dr. Upadhyay determined that Mr. Hynd can: stand/walk for one half hour at a time, and for a total of two hours in an eight-hour work day; sit for one hour at a time, and for a total of five hours in an eight-hour work day; and drive a vehicle for up to one half hour at a time, and for a total of one hour in an eight-hour work day. (Tr. 719-720.) Dr. Upadhyay assessed that Mr. Hynd can lift/carry up to ten pounds occasionally. (Id.) Ultimately, Dr. Upadhyay opined that Mr. Hynd is limited to less than sedentary work and is not physically capable of working an eight-hour work day five days per week. (Tr. 723; 724.)

         Following the hearing, on August 27, 2015, the ALJ issued a decision denying Mr. Hynd's applications for disability benefits. (Tr. 26-47.) In this decision, the ALJ first found that Mr. Hynd met the insured requirements of the Act through December 31, 2017. (Tr. 31.) At Step 2 of the five-step sequential analysis process that applies to Social Security disability claims, the ALJ concluded that Mr. Hynd experienced the following severe impairments: degenerative disc disease and fibromyalgia. (Id.) At Step 3 of this sequential analysis, the ALJ concluded that none of Mr. Hynd's impairments met a listing that would define him as per se disabled. (Tr. 32.)

         Before considering Step 4, the ALJ fashioned Mr. Hynd's residual functional capacity. The ALJ concluded that Mr. Hynd is able to perform a range of sedentary work with limitations. (Tr. 33.) Specifically, the ALJ determined that Mr. Hynd can only lift up to ten pounds occasionally, stand and/or walk up to two hours in an eight-hour work day, sit up to six hours in an eight-hour work day, and sit and stand every hour at will. (Id.) The ALJ added the limitation that the work should be routine and repetitive and performed in an environment free of fast-paced production requirements. (Id.)

         In reaching this conclusion, the ALJ partially discounted Mr. Hynd's statements concerning the intensity, persistence, and limiting effects of his symptoms, noting that his conditions have not warranted surgery, he has no problems with sleep despite his significant levels of pain, and pain medication and sitting alleviated his pain. (Tr. 34; 39.) The ALJ then canvassed the clinical, diagnostic, and medical opinion evidence before concluding that Mr. Hynd retained the residual functional capacity to perform a range of sedentary work, with the above discussed limitations. (Id.) Having made these findings, the ALJ concluded, consistent with the testimony of the vocational expert that Mr. Hynd could return to his past relevant work as an order clerk and telephone solicitor. (Tr. 41.)

         The ALJ moved on to Step Five, though not necessary, noting that she made these findings in the alternative. (Tr. 41.) The ALJ found that based on the above discussed RFC, and considering Mr. Hynd's age, education, work experience, and residual functional capacity, jobs existed in significant numbers in the national economy that Mr. Hynd could perform. (Id.) The ALJ explained that if Mr. Hynd had the RFC to perform the full range of sedentary work, a finding of “not disabled” would be directed by Medical-Vocational Rule 201.28, but because Mr. Hynd is impeded by additional limitations, the ALJ relied upon testimony from the vocational expert to determine if these limitations eroded the unskilled sedentary occupational base. (Tr. 42.) Based upon the vocational expert's testimony, the ALJ determined Mr. Hynd is able to perform the following unskilled in nature and sedentary exertion occupations: table worker[3] and final assembler.[4] (Id.) The ALJ determined that pursuant to the guidelines set forth in SSR 00-4p, the vocational expert's testimony was consistent with the information published in the DOT. (Id.) However, the ALJ noted that the DOT does not address the sit/stand option, and that the vocational expert identified jobs allowing that accommodation based upon his experience and observations working in the field. (Id.) Ultimately, the ALJ found Mr. Hynd not disabled. (Id.)

         Having exhausted his administrative remedies with respect to this adverse decision, Mr. Hynd filed the instant appeal. (Doc. 1.) On appeal, Mr. Hynd argues that the ALJ's decision is not supported by substantial evidence, and is arbitrary and capricious. (Doc. 1 p. 3.) He alleges that the ALJ applied incorrect legal standards. (Id.) This case is fully briefed and is now ripe for resolution.

         III. Discussion

         A. Substantial Evidence Review - the Role of this Court

         When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); Johnson v. Comm'r. of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D.Pa. 2012). 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). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But 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 [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D.Pa. 2003). The question before this Court, therefore, is not whether Mr. Hynd is disabled, but whether the Commissioner's finding that he is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D.Pa. Mar. 11, 2014)(“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”)(alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D.Pa. 1981)(“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).

         B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ

         To receive benefits under the Social Security Act by reason of disability, a claimant 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); see also 20 C.F.R. §§404.1505(a), 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).

         In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§404.1520(a), 416.920(a). Under this process, the ALJ 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 is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. §§404.1520(a)(4), 416.920(a)(4).

         Between Steps 3 and 4, the ALJ must also assess a claimant's RFC. RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2).

         There is an undeniable medical aspect to an RFC determination, since that determination entails an assessment of what work the claimant can do given the physical limitations that the claimant experiences. Yet, when considering the role and necessity of medical opinion evidence in making this determination, courts have followed several different paths. Some courts emphasize the importance of medical opinion support for an RFC determination and have suggested that “[r]arely 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.” Biller v. Acting Comm'r of Soc. Sec.,962 F.Supp.2d 761, 778-79 (W.D. Pa. 2013) (quoting Gormont v. Astrue, Civ. No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013)). In other instances, it has been held that: “There is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC.” Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d Cir. 2006). Further, courts have held in cases where ...


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