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Holst v. Saul

United States District Court, M.D. Pennsylvania

September 10, 2019

JUDITH HOLST, Plaintiff
v.
ANDREW SAUL, Commissioner of Social Security, Defendant

          Brann Judge.

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge.

         I. Introduction

         Fair and impartial symptom evaluation and assessment is a crucial part of any Social Security disability determination. In this regard, several cardinal principles guide us in judicial review of this aspect of any Social Security appeal. First, when conducting this symptom evaluation “the ALJ must specifically identify and explain what evidence he found not credible and why he found it not credible. An ALJ cannot reject evidence for an incorrect or unsupported reason.” Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014) (citations omitted). Second, “[w]here an ALJ finds that there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.” McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015) (footnotes omitted). Third, “[w]hen a conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or for the wrong reason.' Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993).” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999).

         The instant case aptly illustrates these principles governing symptom evaluation. Judith Holst is a woman in her 60's who applied for disability benefits due to the progression of her symptoms from Waldenstrom macroglobulienema (WM), a form of non-Hodgkin's lymphoma. Holst testified that, by August 2015, the fatigue, confusion, memory loss and vertigo caused by this progressive, incurable disease had rendered her unable to work. Holst's description of her physical decline was supported by the testimony of her daughter, Nicole Carvalho, who stated that by the Fall of 2017, Holst spent up to 70% of her day resting and reclining due to these symptoms.

         The Administrative Law Judge (“ALJ”) who heard this case discounted this testimony regarding the persistence and severity of Ms. Holst's symptoms, finding this testimony only partially credible because “[p]rogress notes from 2016 and 2017 show claimant only occasionally reported fatigue and rarely reported weakness or dizziness. On most examinations, the claimant did not report any adverse symptoms.” (Tr. 22.) The ALJ then placed great weight on the opinion of a state agency expert, Dr. Gordon Arnold, who found that Holst's WM symptoms were not disabling. In reaching this conclusion, the ALJ repeated that: “This opinion is supported by the longitudinal progress notes, which show that the claimant only occasionally reported fatigue, weakness or dizziness.” (Id.) Thus, fairly construed, the ALJ's decision rested in large measure upon this factual finding that Holst only reported these symptoms occasionally to caregivers, since this finding served as the basis for rejecting the credibility of Holst's claims concerning her symptoms, and was one of the pillars relied upon to give great weight to the state agency expert's finding that Holst was not disabled.

         Yet, as discussed below, this characterization of the medical record as one in which Holst only occasionally reported these symptoms is not supported by substantial evidence. Quite the contrary, between October 2015 and May 2017, Holst reported symptoms of fatigue, confusion, and vertigo to her treating physicians on at least 10 separate occasions. Thus, the medical record is replete with reports of these symptoms, and not devoid of this evidence as the ALJ's decision suggested. Mindful of the fact that an ALJ “must specifically identify and explain what evidence he found not credible and why he found it not credible[, ] [and a]n ALJ cannot reject evidence for an incorrect or unsupported reason, ” Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014), and recognizing that an ALJ “cannot reject evidence for no reason or for the wrong reason, ” Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993), for the reasons discussed below, we conclude that this failure to recognize and address Holst's consistent reports of fatigue, confusion and dizziness spanning nearly two years in the instant case compels a remand for further consideration of this case by the Commissioner.

         II. Statement of Facts and of the Case

         On August 27, 2015, Judith Holst applied for disability benefits pursuant to Title II of the Social Security Act, alleging that she had become totally disabled on August 24, 2015, due to the progression of symptoms caused by her Waldenstrom macroglobulienema (WM), a form of non-Hodgkin's lymphoma. (Tr. 19.) Holst, who was born in 1952, was 63 years old at the time of the alleged onset of her disability and was considered a person closely approaching retirement under the Commissioner's regulations. (Tr. 58.) Holst had a college education, (Tr. 30), and had prior employment as an administrative clerk, bookkeeper, data clerk and receptionist. (Tr. 22.)

         At the heart of Holst's disability claim was her assertion that the progression of her WM, an incurable disease, now caused such severe fatigue, confusion, and vertigo that she could no longer work. On this score, Holst's treatment records were replete with references to progressively more severe fatigue, memory loss, and dizziness. These medical reports began in October of 2014, ten months prior to the onset of her disability, when Holst advised doctors at Sloan Kettering Hospital “that she is starting to develop more fatigue.” (Tr. 219, 222.)

         According to Holst, by August 2015, this fatigue and mental confusion was substantially interfering with her ability to work as a data entry clerk and she was discharged from her work due to her inability to meet the requirements of this work because of her exhaustion and mental confusion. (Tr. 35-40.) In the intervening months, Holst consistently and repeatedly informed her doctors that she was suffering from fatigue, memory loss, and vertigo. Thus, Holst's October 6, 2015 treatment notes reflected that she reported that she was “always tired, ” suffered from “vertigo [that had been] going on for a while, ” and was experiencing memory loss. (Tr. 304.)

         Two months later, on January 11, 2016, Holst reported that she was still suffering from fatigue and anxiety. (Tr. 468-69.) Five days later, on January 16, 2016, Holst underwent a disability consultative examination by Dr. Ahmad Khan, who also documented her fatigue, confusion and dizziness. According to Dr. Khan:

[Holst's] symptoms at this time are chronic fatigue and occasional dizziness. She gets tired. She is unable to walk around much and she also has been diagnosed with low blood counts ..... In view of her chronic fatigue, dizziness and lightheadedness, she is unable to perform her daily activities.

(Tr. 342.)

         These symptoms persisted throughout 2016. Thus, while Holst stated in February of 2016 that her mental “fog” was lifting somewhat, (Tr. 460), by March 10, 2016, it was reported that she was “having memory issues since starting new med[icine].” (Tr. 454.) By April 28, 2016, Holst was experiencing memory loss, lightheadedness, dizziness, and fatigue. (Tr. 438-39.) These symptoms continued to plague Holst in the Fall of 2016, when she informed her doctors on September 20, 2016 that she was suffering from memory loss and fatigued easily. (Tr. 422.) Two weeks later, on October 4, 2016, Holst reported confusion and exhaustion to her caregivers. (Tr. 418.)

         In 2017, Holst continued to consistently describe weakness, confusion and vertigo symptoms caused by her WM. Thus on March 7, 2017, she stated that she was suffering from weakness and fatigue. (Tr. 388-89.) According to Holst, by May of 2017, she was experiencing fatigue several days every two weeks and suffered from difficulty in concentrating on a nearly daily basis. (Tr. 376.) Holst confirmed these symptoms in her testimony at the June 27, 2017 disability hearing conducted in this case. (Tr. 35-45.) In that testimony, Holst described how she had lost her employment in August 2015 due to her chronic fatigue and inability to remember work related tasks. She also testified regarding how these symptoms of her WM had become progressively more severe since 2015, stating that she now felt the need to recline and rest up to 50 or 60% of the day. (Tr. 40.) Holst's testimony concerning her debilitating fatigue, vertigo and confusion was confirmed by her daughter, Niccole Carvalho. (Tr. 45-50.) Ms. Carvalho testified that she observed her mother on a daily basis and had seen a notable increase in her mental confusion, coupled with a dramatic increase in her level of fatigue since 2015. (Id.) According to Ms. Carvalho, Holst was now easily flustered and confused and needed to recline and rest up to 70% of the day. (Id.)

         Following this June 27, 2017 disability hearing, on November 8, 2017, the ALJ issued a decision denying Holst's application for benefits. (Tr. 13-26.) In that decision, the ALJ first concluded that Holst met the insured status requirements of the Social Security Act through September 30, 2018 and had not engaged in any substantial gainful activity since her alleged onset date of disability on August 24, 2015. (Tr. 189.) At Step 2 of the sequential analysis that governs Social Security cases, the ALJ found that Holst's Waldenstrom macroglobulienema was a severe impairment. (Tr. 19.) Having made this Step 2 determination, at Step 3 the ALJ concluded that Holst's impairment did not meet or medically equal the severity of any listed impairment which would have defined her as per se disabled. (Tr. 19.)

         Between Steps 3 and 4, the ALJ then fashioned a residual functional capacity (“RFC”) for Holst which found that she could perform a range of light work. (Tr. 19-22.) In reaching this conclusion, the ALJ found that Holst's reports regarding the severity and persistence of her fatigue, confusion and vertigo were not entirely consistent with the medical evidence. (Tr. 20.) A key component of this symptom evaluation by the ALJ was the ALJ's determination that Holst's testimony only partially credible because “[p]rogress notes from 2016 and 2017 show claimant only occasionally reported fatigue and rarely reported weakness or dizziness. On most examinations, the claimant did not report any adverse symptoms.” (Tr. 22.) The ALJ did not further reconcile this description of her reported symptoms with the actual medical records themselves, which contained at least ten references to Holst's reports of fatigue, dizziness, and mental confusion between October 2015 and May 2017.

         The ALJ then repeated this assertion that Holst had only occasionally raised these symptoms in the course of evaluating the medical expert evidence in this case. Specifically, the ALJ placed great weight on the opinion of a state agency expert, Dr. Gordon Arnold, who had never examined or treated Holst, but who nonetheless concluded that Holst's WM symptoms were not disabling. The ALJ justified this reliance upon the opinion of a non-treating and nonexamining source to refute Holst's disability claim by asserting that: “This ...


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