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Hennion v. Berryhill

United States District Court, M.D. Pennsylvania

April 1, 2019

ROBERT T. HENNION, JR., Plaintiff
v.
NANCY BERRYHILL, [1]Acting Commissioner of Social Security, Defendant

          BRANN, D.J.

          REPORT AND RECOMMENDATION

          WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE

         TABLE OF CONTENTS

         I. Introduction…………………………………………………………3

         II. Statement of Facts and of the Case…………………………………3

         III. Legal Standards……………………………………………………..10

         A. Substantial Evidence Review - the Role of This Court……………..10

         B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ...12

         IV. Analysis……………………………………………………………14

         A. The ALJ's Decision Denying Plaintiff's Applications……………..15

         B. Whether the ALJ's Findings At Step Three of the Sequential Evaluation Process are Supported by Substantial Evidence ................ 17

         C. The ALJ's Evaluation of the Medical Opinion Evidence .................... 20

         1. Whether the ALJ Erred by Ignoring Treatment Records that Supported Dr. Sinderman's Opinion ...... 22

         2. Whether the ALJ Erred in his Application of the Factors Outlined in 20 C.F.R. § 404.1527(c) and 20 C.F.R. § 416.927(c) ...................... 31

         3. Whether the ALJ Adequately Evaluated the Medical Opinion of Dr. Gavazzi .......... 41

         4. Whether the ALJ Adequately Evaluated the Medical Opinion of Sandra Banks ............ 47

         5. Whether the ALJ Adequately Evaluated Plaintiff's GAF Scores .... 50

         6. Whether the ALJ Complied with the Court's Remand Order .......... 54

         D. Whether Substantial Evidence Supports the ALJ's RFC Assessment ...... 56

         E. Whether Substantial Evidence supports the ALJ's Evaluation of Plaintiff's Statements about His Symptoms ...... 59

         V. Recommendation ................ 64

         I. INTRODUCTION

         Plaintiff Robert T. Hennion, Jr. (“Plaintiff”), an adult individual who resides within the Middle District of Pennsylvania, seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claims for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. (Doc. 1). Jurisdiction is conferred on this Court pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).

         This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing the briefs submitted by both parties, the ALJ's decision, and the relevant portions of the certified transcript, I find that the final decision of the Commissioner of Social Security is supported by substantial evidence. Accordingly, IT IS RECOMMENDED that the final decision denying Plaintiff's applications for benefits be AFFIRMED.

         II. STATEMENT OF FACTS AND OF THE CASE

         On September 29, 2010, Plaintiff protectively filed applications for a period of disability, disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act, alleging that he became disabled beginning June 17, 2010 because of the following impairments: panic disorder, agoraphobia, possible bipolar, depression, separation anxiety, sedation, irritable bowel syndrome, panic attacks, and severe anxiety. (Admin. Tr. 227; Doc. 6-6, p. 10). Plaintiff alleges that these conditions affect his ability to walk (due to agoraphobia), follow instructions, and get along with others. (Admin. Tr. 243; Doc. 6-6, p. 26). However, those closest to him, namely his mother and girlfriend, identified additional deficits. Plaintiff's mother, Judith Hennion, reported that Plaintiff's conditions affect his ability to: walk, remember, complete tasks, understand, follow instructions, and get along with others. (Admin. Tr. 265; Doc. 6-6, p. 48). Plaintiff's live-in girlfriend, Lucinda Volk, reported that Plaintiff's conditions affect his ability to: lift, bend, sit, kneel, remember, complete tasks, concentrate, and follow instructions. (Admin. Tr. 1025; Doc. 6-20, p. 29).

         Plaintiff was twenty-eight (28) years old as of his alleged onset date. (Admin. Tr. 768; Doc. 6-16, p. 14). He previously worked as a telephone solicitor and a customer service clerk. Id. Plaintiff has at least a high school education and can read and write in English. Id.

         On December 22, 2010, Plaintiff's applications were denied at the initial level of administrative review. (Admin. Tr. 66; Doc. 6-2, p. 67).

         Following the denial of his applications at the initial level of administrative review, Plaintiff requested an administrative hearing. Id. On January 31, 2012, Plaintiff appeared and testified with the assistance of his counsel at an administrative hearing before Administrative Law Judge Randy Riley (the “ALJ”). Id. Impartial vocational expert Brian Bierley also appeared and testified during the proceedings. Id. On March 9, 2012, the ALJ issued a written decision denying Plaintiff's applications. (Admin. Tr. 63-77; Doc. 6-2, pp. 64-78).

         Following the denial of his applications at the ALJ hearing level, Plaintiff requested that the Appeals Council of the Office of Disability Adjudication and Review (“Appeals Council”) assess the ALJ's decision denying his applications. (Admin. Tr. 60-61; Doc. 6-2, pp. 61-62). On December 26, 2012, the Appeals Council denied Plaintiff's request for review. (Admin. Tr. 1-3; Doc. 6-2, pp. 2-4).

         On February 4, 2013, Plaintiff filed an action with the U.S. District Court to appeal the Commissioner's unfavorable decision. (Admin. Tr. 839; Doc. 6-17, p. 48).

         On January 14, 2015, United States Magistrate Judge Gerald B. Cohn issued a fifty-nine (59) page Report recommending that the Commissioner's final decision denying Plaintiff's applications be VACATED and that the case be REMANDED. (Admin. Tr. 837-95; Doc. 6-17, pp. 46-104). In his Report, Judge Cohn noted that the ALJ rejected the opinions of two treating physicians, Dr. Sinderman and Dr. Rodgers, in favor of an opinion by nonexamining State Agency Medical Consultant Dr. Gavazzi. By way of explanation, the ALJ wrote only that the opinions of the two treating sources were “not supported by the medical evidence of record.” (Admin. Tr. 874-75; Doc. 6-17, pp. 83-84). Judge Cohn found that the ALJ's decision to disregard these opinions was not supported by substantial evidence because the ALJ referenced normal objective findings but failed to acknowledge abnormalities documented in the same treatment notes.

         Judge Cohn also noted that:

most of the relevant records were handwritten notes from Dr. Rogers and Dr. Sinderman. Much of these notes were illegible. Defendant conceded that “[b]oth of Plaintiff's treating physicians' notes are difficult to read.” (Def. Brief at 6). However, that does not excuse the ALJ's failure to acknowledge the abnormalities that were documented legibly. Moreover, to the extent the ALJ was unable to read these records, the ALJ should have obtained clarification of those records, as they were crucial to the determination of disability. An ALJ is not entitled to characterize the medical record as evidencing no “significant mental abnormalities” simply because he is unable to decipher what the records say.

(Admin Tr. 885-86; Doc. 6-17, pp. 94-95). At the end of his Report, Judge Cohn recommended that:

The decision of the Commissioner denying Plaintiff's social security disability insurance and supplemental security income benefits be vacated and the case remanded to the Commissioner of Social Security to develop the record fully, obtain legible treatment notes if necessary, and conduct a new administrative hearing and appropriately evaluate the evidence, particularly Plaintiff's treating source opinions.

(Admin. Tr. 894; Doc. 6-17, pp. 103) (emphasis added).

         On March 2, 2015, United States District Judge Matthew W. Brann issued an Order adopting Judge Cohn's Report. (Admin. Tr. 835-36; Doc. 6-17, pp. 44-45). Judge Brann's Order included the following language:

The decision of the Commissioner of Social Security denying Plaintiff's social security disability insurance and supplemental security income is VACATED and the case REMANDED to the Commissioner to develop the record fully, obtain legible treatment notes if necessary, conduct a new administrative hearing and appropriately evaluate the evidence, particularly Plaintiff's treating source opinions.

Id. (emphasis added) (boldface text in original).

         Upon receipt of Judge Brann's Order, the Appeals Council issued the following order:

The U.S. District Court for the Middle District of Pennsylvania (Civil Action Number 3:13-CV-00268) has remanded this case to the Commissioner of Social Security for further administrative proceedings in accordance with the fourth sentence of section 205(g) of the Social Security Act.
Therefore, the Appeals Council vacates the final decision of the Commissioner of Social Security and remands this case to an Administrative Law Judge for further proceedings consistent with the order of the court.
The claimant filed an electronic subsequent claim for Title II disability insurance benefits on January 25, 2013. The Appeals Council's action with respect to the current electronic claims renders the subsequent claim duplicate. Therefore, the Administrative Law Judge will consolidate the claim files, create a single electronic record, and issue a new decision on the consolidated claims (20 CFR 404.952, 416.1452, and HALLEX I-1-10-10).
In compliance with the above, the Administrative Law Judge will offer the claimant the opportunity for a hearing and take any further action needed to complete the administrative record.

(Admin. Tr. 898; Doc. 6-17, p. 107).[2]

         After the District Court issued its remand order, but before the new administrative hearing was held, Plaintiff submitted two written requests to amend his alleged onset date. On December 29, 2015, Plaintiff amended his alleged onset date to August 10, 2015. (Admin. Tr. 994; Doc. 6-19, p. 12). On January 6, 2016, Plaintiff asked that the previously amended onset date of disability be disregarded, and he amended his alleged onset date of disability to the closed period of June 17, 2010 to August 10, 2015. (Admin. Tr. 995; Doc. 6-19, p. 13).

         At some point between the ALJ's first decision denying Plaintiff's applications, and the second administrative hearing, Plaintiff enrolled in college, earned his associates degree, and re-entered the workforce.

         On January 14, 2016, Plaintiff appeared and testified at his second hearing, with the help of counsel. (Admin. Tr. 759; Doc. 6-16, p. 5). At the hearing, Plaintiff requested that the closed period be amended to June 17, 2010 to September 1, 2014. Id. Vocational expert Paul A. Anderson (the “VE”) also appeared and testified at this hearing. Id. On February 3, 2016, the ALJ issued another unfavorable decision finding that Plaintiff was not disabled during the closed period. (Admin. Tr. 759-770; Doc. 6-16, pp. 5-16).

         On April 5, 2016, Plaintiff initiated this action by filing a Complaint, in which, he alleges that the ALJ's final decision denying his applications was not made in accordance with the law and is not supported by substantial evidence.[3](Doc. 1). As relief, Plaintiff requests that the Court enter an order reversing the decision of the Commissioner and granting Plaintiff's applications, or in the alternative, that the Court remand this matter for a new administrative hearing and further development of the record. Id.

         On June 6, 2016, the Commissioner filed her Answer, in which she maintains that the decision denying Plaintiff's Application is correct; was made in accordance with the law; and is supported by substantial evidence. (Doc. 5). Along with her Answer, the Commissioner filed a certified transcript of the administrative proceedings. (Doc. 6 et seq.).

         This case has been fully briefed and is ripe for decision. (Doc. 9); (Doc. 10); (Doc. 11).

         III. LEGAL STANDARDS

         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); 42 U.S.C. § 1383(c)(3); 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 Plaintiff 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a).[4] 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); 20 C.F.R. § 416.905(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); 20 C.F.R. § 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); 20 C.F.R. § 416.920(a)(4).

         Between steps three and four, 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); 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.920(e); 20 C.F.R. § 416.945(a)(1). In making this assessment, the ALJ considers all 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); 20 C.F.R. § 416.945(a)(2).

         At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5); 42 U.S.C. §1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912; Mason, 994 F.2d at 1064.

         Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. § 404.1512(f); 20 C.F.R. § 416.912(f); Mason, 994 F.2d at 1064.

         The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).

         IV. ANALYSIS

         Plaintiff raises the following six (6) allegations of error in his brief:

(1) The ALJ failed to comply with the Middle District of Pennsylvania's Remand Order Dated March 2, 2015.
(2) The ALJ erred by finding that Hennion did not meet or equal listing 12.04 and 12.06.
(3) Substantial evidence does not support the ALJ's evaluation of the opinion evidence.
(4) Substantial evidence does not support the ALJ's RFC assessment.
(5) The ALJ improperly evaluated Hennion's GAF scores.
(6) Substantial evaluation [sic] does not support the ALJ's credibility evaluation.

(Doc. 9, p. 2).

         A. The ALJ's Decision Denying Plaintiff's Applications

         In his February 2016 decision denying Plaintiff's applications, the ALJ evaluated Plaintiff's claim at each step of the sequential evaluation process. At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity between June 17, 2010 (the onset date) and September 1, 2014 (the amended end date of disability) (the “closed period”). (Admin. Tr. 761; Doc. 6-16, p. 7). At step two, the ALJ found that Plaintiff had the following medically determinable, severe impairments during the closed period: generalized anxiety disorder and panic disorder with agoraphobia. Id. The ALJ found that the following impairments were medically determinable but non-severe: acute nausea and vomiting, obesity, mild degenerative changes of the right knee. (Admin. Tr. 762; Doc. 6-16, p. 8). At step three, the ALJ found that during the closed period Plaintiff did not have an impairment or combination of impairments that met or medically equalled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.

         Between steps three and four, the ALJ evaluated Plaintiff's RFC. He concluded that during the relevant period, Plaintiff had the RFC to perform “a full range of work at all exertional levels” except that he has the following non-exertional limitations:

simple[, ] routine, repetitive tasks in a work environment free from fast-paced production; work is a low stress job (defined as having only occasional decision-making and occasional changes to the routine work setting); no interaction with the public; occasional interaction with coworkers but no tandem tasks; and occasional supervision.

(Admin. Tr. 763; Doc. 6-16, p. 9).

         At step four, the ALJ found that, during the relevant period, Plaintiff was unable to engage in his past relevant work as a telephone solicitor and customer service clerk. (Admin. Tr. 768; Doc. 6-16, p. 14). At step five, the ALJ found that in consideration of Plaintiff's RFC and the vocational factors, there were jobs that existed in the national economy that Plaintiff could perform during the closed period, including occupations such as a sexton, a cleaner/housekeeper, and a surveillance system monitor. Id. Based on these findings, the ALJ ...


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