THOMAS B. SMITH, Magistrate Judge.
Plaintiff Keith Roberts appeals to this Court from the Commissioner of Social Security's final decision to deny his application for disability insurance benefits and supplemental security income. I have reviewed the record, including the administrative law judge's ("ALJ") decision, the exhibits, and the joint memorandum submitted by the parties. For the following reasons, I respectfully recommend that the Commissioner's final decision be
At the time of the administrative hearing, Plaintiff was fifty-two years old and had completed the twelfth grade (Tr. 67). He alleged a disability onset date of September 10, 2008 (Tr. 80, 221, 249). On that same date, Plaintiff applied for benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 416, 423 (Tr. 91, 228). His claims were denied at the initial level (on September 8, 2011) and on reconsideration (on December 14, 2011) (Tr. 138, 144, 153, 159). At Plaintiff's request, an ALJ conducted a hearing on August 26, 2013 (Tr. 64-79). On February 3, 2014, the same ALJ held a supplemental hearing on the matter (Tr. 55-63). The ALJ issued an unfavorable decision on April 1, 2014 (Tr. 28-41). On November 20, 2015, the Appeals Council denied Plaintiff's petition for review of the ALJ's decision (Tr. 1-3). Thus, the ALJ's decision is the Commissioner's final decision and this appeal timely followed (Doc. 1). Plaintiff has exhausted his administrative remedies and his case is ripe for review.
When determining whether an individual is disabled, the ALJ must follow the Commissioner's five-step sequential evaluation process set out in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). The evaluation process requires the ALJ to determine whether the claimant: (1) is currently employed; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past relevant work; and (5) retains the ability to perform work in the national economy.
The ALJ determined at step one that Plaintiff had not engaged in substantial gainful activity since his September 10, 2008 alleged onset date (Tr. 30). At step two, the ALJ found Plaintiff severely impaired by: a back problem, pain syndrome and a seizure disorder (Tr. 30-33). At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926) (Tr. 33). Before proceeding to step four, the ALJ decided that Plaintiff had the residual functional capacity to,
(Tr. 33-39). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work (Tr. 39). But, the ALJ ultimately concluded at step five that there were other jobs in the national economy that Plaintiff could perform and therefore, he was not disabled (Tr. 40-41).
The scope of the Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the ALJ's findings are supported by substantial evidence.
When the Commissioner's decision is supported by substantial evidence the district court will affirm even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the preponderance of the evidence is against the Commissioner's decision.
Plaintiff argues that the ALJ erred when he failed to consider the portion of treating Dr. Christopher J. Prusinski's
Absent good cause, the opinions of treating physicians must be accorded substantial or considerable weight.
When a treating physician's opinion does not warrant controlling weight, the ALJ must still consider the following factors in deciding how much weight to give the medical opinion: "(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the medical evidence supporting the opinion; (4) consistency with the record as a whole; (5) specialization in the medical issues at issue; (6) other factors which tend to support or contradict the opinion."
Dr. Prusinski has been Plaintiff's treating physician since February 7, 2013 (Tr. 496). He has rendered multiple opinions about Plaintiff's various impairments that are based on personal evaluation and interpretation of objective medical testing results (Tr. 496-526, 557-560). The ALJ made the following assessment of Dr. Prusinski's opinion:
(Tr. 38) (emphasis added).
Despite the many reasons the ALJ gave for assigning Dr. Prusinski's opinion significant weight, he inexplicably ignored the doctor's conclusion that Plaintiff's temporary total disability would last for one year. "The ALJ has a duty to express why he rejected portions of Dr. [Prusinski's] opinion when he simultaneously found the overall opinion to be entitled to significant weight."
The Commissioner responds to Plaintiff's contention by arguing that (1) Dr. Prusinski's opinion was rejected because it is an impermissible opinion on an issue reserved for the Commissioner, (2) the opinion was contradicted by Dr. Cooper's observations, (3) Dr. Prusinski failed to provide a definition of "TTD," (4) the ALJ is not required to discuss every piece of evidence in the record, (5) Dr. Prusinski's opinion fails to incorporate the results of objective medical testing, (6) Plaintiff's neurological symptoms did not increase between his visits to the doctor, (7) Dr. Prusinski's opinion regarding TTD is inconsistent with his treatment notes, (8) Plaintiff's daily activities are inconsistent with Dr. Prusinski's opinion of total disability, and (9) Dr. Prusinski's opinion is inconsistent with the opinions of other physicians (Doc. 20 at 18-24). But, the ALJ failed to weigh Dr. Prusinski's opinion of "TTD" let alone give any of these reasons for discounting it.
Post hoc arguments on appeal cannot be substituted for ALJ reasoning at the administrative level. The Court is not interested in what argument the Commissioner makes at this stage in the proceedings, rather, it is only concerned with the reasoning the ALJ offered (or failed to offer) when the ALJ made his decision.
Without explicit explanation, the Court would be required to speculate as to why the ALJ rejected or failed to consider the TTD portion of Dr. Prusinski's medical opinion. For this reason, I respectfully recommend the district judge reverse the ALJ's decision and remand the case back to the Commissioner.
Because remand is required based upon Plaintiff's first argument, it is unnecessary to review his remaining objections to the ALJ's decision.
Upon consideration of the foregoing, I respectfully recommend that:
1. The Commissioner's final decision be
2. The Clerk be directed to enter judgment accordingly and CLOSE the file.
3. Plaintiff be advised that the deadline to file a motion for attorney's fees pursuant to 42 U.S.C. § 406(b) shall be thirty (30) days after Plaintiff receives notice from the Social Security Administration of the amount of past due benefits awarded.
4. Plaintiff be directed that upon receipt of such notice, she shall promptly email Mr. Rudy and the OGC attorney who prepared the Commissioner's brief to advise that the notice has been received.
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation.