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Prebish v. Berryhill

United States District Court, M.D. Pennsylvania

June 10, 2019

MARLENE PREBISH, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          Munley Judge.

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge.

         I. Statement of Facts and of the Case

         On occasion, legal analysis of Social Security appeals calls to mind principles of Newtonian physics. Newton's third law states that for every action there is an equal and opposite reaction. In Social Security litigation, oftentimes it appears that for each categorical legal proposition, one can find an equal and opposite proposition.

         As presented by the parties, this case harkens to these Newtonian notions. The sole issue here relates to the ALJ's consideration of Ms. Prebish's mental and emotional impairments. Each party either attacks, or defends, the ALJ's decision based upon broadly stated legal assertions. For example, the plaintiff assails the ALJ's analysis of her mental state by arguing that “this Court have consistently held that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work”, and insisting that “[t]his Court has routinely held that such a limitation [to simple routine tasks] does not properly account for a limitation to ‘one or two step tasks.' ” (Doc. 12, at 10-12.) The Commissioner's rejoinder to these arguments is also broadly framed, with the Commissioner noting that “the Third Circuit [decision] in Zirnsak v. Colvin, 777 F.3d 607, 618 (3d Cir. 2014), . . . held that there is no per se conflict between jobs requiring a level 3 reasoning and a finding that a claimant should be limited to simple and routine work.” (Doc. 13, at 15.)

         In our view, these competing categorical assertions are of only limited value in resolving the instant appeal, since each of these legal assertions was advanced in the context of a specific factual setting. Therefore, the factual context of a case is often more instructive and informative in resolving particular Social Security appeals than any broadly stated legal propositions.

         So it is in the instant case. As to this dispute concerning the mental residual functional capacity assessment devised by the ALJ, the pertinent facts can be simply stated.

         Marlene Prebish applied for disability benefits alleging that she had become disabled as of January 2012 due to the combined effects of degenerative disc disease, obesity, anxiety and depression. (Tr. 14.) In the instant appeal, only Prebish's emotional impairments are at issue. With respect to these emotional impairments, in between 2013 and 2016, Prebish was under the care of Dr. Mark Saxon, who was treating her for anxiety, depression and bi-polar disorder. (Tr. 702-48, 844-71, 1497-1557.) In April of 2017, Dr. Saxon completed a medical source statement, which found that Prebish was either seriously limited or unable to meet multiple intellectual demands of the workplace due to these psychiatric conditions. (Tr. 1557-62.) In contrast, a July 2013 mental health disability determination made by a state agency expert, Dr. James Cunningham, concluded that Prebish experienced moderate limitations in her ability to carry out detailed instructions and maintain attention and concentration for extended periods, as well as experiencing moderate limitations in responding to workplace changes, traveling, and setting realistic goals. (Tr. 88-89.)

         It was against the backdrop of these contrasting medical opinions that the ALJ considered Prebish's mental and emotional limitations in the April 26, 2017 decision denying this application for disability benefits. (Tr. 8-24.) In this decision, the ALJ identified Prebish's depression and anxiety as severe impairments at Step 2 of the sequential analysis that applies to Social Security disability claims. (Tr. 14.) Notwithstanding this threshold finding that Prebish suffered from severe emotional impairments, the ALJ found that she could perform a range of sedentary work and fashioned a residual functional capacity assessment that accounted for Prebish's emotional impairments by finding that she was “limited to work that is simple, routine, and repetitive.” (Tr. 17.)

         In reaching this conclusion, the ALJ discounted the medical opinion of Prebish's treating source, Dr. Saxon, who had treated Prebish for 3 years and had opined that she was completely disabled. (Tr. 20-21.) The ALJ also afforded “little overall weight” to the opinion of the state agency expert, Dr. Cunningham, who had found in 2013 that Prebish experienced moderate difficulties in maintaining concentration, persistence and pace, but retained the ability to perform simple, one or two-step tasks. (Tr. 21.) Thus, the mental health component of this RFC assessment was unsupported by any medical opinion, and was based upon the rejection, in large measure, of both medical source statements. (Id.) Furthermore, when the ALJ gave the state agency expert opinion “little weight overall, ” the ALJ “f[ound] that she is more limited than the opinion indicates.” (Id. emphasis added.) Yet while the ALJ's decision stated that due to her emotional impairments Prebish could do less than the state agency expert opined, the RFC fashioned by the ALJ actually indicated that she could do more that the agency expert stated. This mental health RFC simply stated that Prebish was “limited to work that is simple, routine, and repetitive, ” (Tr. 17), but did not acknowledge that Prebish experienced moderate limitations in concentration, persistence and pace. Nor did this mental RFC limit her to simple one or two steps tasks, limitations found by Dr. Cunningham and limitations that the ALJ indicated actually overstated her abilities, since the ALJ found that Prebish was more limited than the state agency expert indicated. (Tr. 21.)

         Having made these somewhat contradictory determinations regarding Prebish's mental residual functional capacity when fashioning her mental RFC, the ALJ then found at Step 5 of this sequential analysis that Prebish could perform other work in the regional economy, including work as a video surveillance monitor or credit authorizer. (Tr. 23.) Yet, both of these job positions are defined in the Dictionary of Occupational Title as jobs that require reasoning level 3 functioning; that is, the ability to: “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form [and] [d]eal with problems involving several concrete variables in or from standardized situations.” DICOT 249.367-022 (G.P.O.), 1991 WL 672327 (credit authorizer); DICOT 379.367-010 (G.P.O.), 1991 WL 673244 (video surveillance monitor). The ALJ did not otherwise reconcile the finding that Prebish could do level 3 reasoning jobs with the RFC finding that limited her to “work that is simple, routine, and repetitive.” (Tr. 17.) Nor did the ALJ's decision further correlate these findings with the conclusion that Prebish “is more limited than the [state agency expert] opinion [which indicated that she had moderate limitations in concentration but could perform simple one or two step tasks] indicates.” (Tr. 21.)

         This appeal followed. (Doc. 1.) As we have noted, on appeal Prebish attacks this mental RFC determination, arguing that it is inconsistent with settled case law. The Commissioner, in turn, defends the ALJ's assessment as consistent with case law. While we find these competing broad legal principles to be of limited value in resolving this case, for the reasons set forth below, we submit as a factual matter that the ALJ's conclusions are insufficiently explained, supported and reconciled with one another. Therefore, we recommend that this case be remanded for further consideration by the Commissioner.

         II. Discussion

         A. Substantial Evidence Review - the ...


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