MILTON I. SHADUR, Senior District Judge.
Joseph Robertson ("Robertson") seeks judicial review pursuant to the Social Security Act ("Act"), more specifically 42 U.S.C. § 405(g),
Robertson filed an application for both Title II and Title XVI benefits on November 8, 2010, alleging a disability onset date of November 17, 2009 (R. 154-68). After his application for SSI was denied on April 7, 2011 (R. 70, 72), Robertson filed a request for reconsideration on June 8, 2011 (R. 77).
At the time of the hearing Robertson was 44 years old (see R. 47, 70) and was married with two children (R. 49). Robertson suffers from osteoarthritis (see, e.g., R. 720) and has undergone four major surgeries on his neck, knee and hips. Following a car accident Robertson had spinal surgery in 2008 to address "cervical myeloradiculopathy due to cervical spondylosis" (disease of the spinal cord and nerve roots due to degeneration of the spine
At the crux of Robertson's appeal are his hip problems. Robertson's first hip surgery was occasioned by an on-the-job injury as well as pre-existing hip disease (R. 493). That surgery addressed a tear in the cartilage lining his right hip socket (a "labral tear"
Following his right hip surgery in June 2010, Robertson continued to suffer pain in both hips (see, e.g., R. 520, 607, 609). He walked with an "obvious gait deviation" favoring the right leg, which necessitated use of a cane (R. 607). Some months after the surgery doctors also noted that the right femoral head exhibited sclerosis (the hardening of bone tissue
After Robertson applied for SSI in late 2010, the Bureau of Disability Determination Services ordered an Internal Medical Consultative Examination, which was conducted in February 2011 (R. 662). At that time Robertson displayed a limited range of motion in his hips and could walk only 25 feet unassisted and less than 50 feet with the aid of a cane (R. 664-65). Robertson also reported that he was taking Norco, a prescription pain medication used to relieve moderate to severe pain,
After those examinations Robertson continued to suffer bilateral hip problems and significant pain from 2011 to 2012 (see, e.g., R. 720, 721,722, 736). In August 2011 orthopedic surgeon Dr. Treister remarked that "[w]hatever was done surgically [on Robertson's right hip] . . . has not helped the patients [sic] right hip pain at all" (
In October 2011 Dr. Treister performed Robertson's second hip surgery — core drilling to address avascular necrosis on the left side (R. 761). But even after that surgery and up through the hearing in August 2012, Robertson's hip pain persisted (see, e.g., R. 703, 713, 715, 716, 717, 718) — his doctor even referred him to a pain clinic (R. 716). Bolstering Robertson's allegations of pain is the fact that he continuously took prescription pain medication (see, e.g., R. 715, 718, 719) throughout that period — eventually his doctor had to counsel him "about risk of long term use of opioid pills" and suggested that he "could control pain with meds that are not opiods" (R. 712). And even though doctors concluded that Robertson's left avascular necrosis had healed, his left femur appeared "suspicious for healed avascular necrosis" with some structural irregularity (R. 725). In April 2012 Robertson was told that he would have to undergo yet another surgery (R. 714).
Due to his physical impairments Robertson has not been able to return to work and his daily functioning is greatly impaired. Robertson's aunt testified that he had "trouble getting up out of bed" and was "unable to sleep" because of "his hips hurting all the time" (R. 286), that he "always needs assistance walking" (R. 288) and that he partakes in few social activities outside of spending time with his family (R. 289). One medical consultant concluded that Robertson was "[u]nable to function independently daily in any respects" (R. 679), largely on account of his physical constraints.
Robertson's December 7, 2011 psychic evaluation contains a doctor's notes that he was born with brain damage and that at age one his father threw him against the wall (R. 706). He was later diagnosed with a learning disability and dropped out of high school in tenth grade (R. 658). Since high school he has served prison terms of 18 months for burglary in 2001 and of one year in 2005 for a parole violation and "battery to a cop" (R. 659).
Robertson's record in the current case reflects significant mental impairments consistent with that history. During his psychological consultative examination in February 2011 the examiner diagnosed Robertson with major depressive disorder, intermittent explosive disorder and an antisocial personality disorder, and the examiner also noted that he had marked impairments in his ability to concentrate and pay attention (R. 660). He assessed Robertson's Global Assessment of Functioning ("GAF") at 40, though a later assessment deemed it 50 (R. 660, 707). GAF scores describe an individual's overall ability to function, with scores of 40 to 50 signaling "[s]erious symptoms . . . or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)" (
During the next month another psychological consultant assessed Robertson's mental RFC and, in contrast to the examiner's findings of the previous month, concluded that Robertson had only a "moderate" limitation on his ability to maintain concentration and attention (R. 681). He further concluded that Robertson could "complete 1-2 step tasks in a work setting that does not involve routine interactions with others" (R. 682).
Robertson testified that he continues to suffer hip problems (R. 51) and, despite taking pain medication (R. 56), continues to experience pain that significantly limits his daily functioning (R. 53-54, 56-60). He said he can sit for only about 20 minutes and stand for only about 15 minutes at a time and that he has to rest after walking even half a block with his cane (R. 53). According to both Robertson and his wife, she must often help her husband dress and bathe (R. 56, 62). Pain not only impacts his mobility, but it also disrupts his sleep — keeping him awake for three or four days at a time (R. 56) — and his ability to socialize. Robertson testified that he could not attend his children's basketball games, church or concerts, or even go out to eat (R. 59). He did state that he occasionally assisted with household chores like vacuuming or dusting (R. 58), that he could drive "a little bit" (R. 56) and that he took his son to school daily (R. 58).
To assess Robertson's RFC, the ALJ also posed a series of hypothetical questions to a vocational expert ("VE"). ALJ Bruning began by asking whether there were sufficient jobs for an individual who could sit for a total of 6 hours a day, 45 minutes at a time with 2 minute breaks in between, and who was limited to three-to-four step simple repeated tasks (R. 65).
Although ALJ Bruning's discussion of her findings occupies nearly a dozen pages (R. 26-37), this summary provides an ample basis for an evaluation by this Court:
It is against that backdrop that this Court must perform its task.
This Court reviews the ALJ's decision as Commissioner's final decision, reviewing the legal conclusions de novo and factual determinations with deference (
Credibility determinations receive an even more deferential review. Courts can reverse or vacate an ALJ's credibility findings only when the findings are "patently wrong" (
To qualify for benefits a claimant must be "disabled" within the meaning of the Act (
Robertson contends that the ALJ erred in several respects: (1) that she erred in finding his cervical spondylosis and related neck problems were not severe impairments; (2) that the ALJ's analysis of Listing 1.02A failed to account for Robertson's avascular necrosis; and (3) that the RFC analysis contained a multitude of analytical flaws. Though any mistaken failure to categorize Robertson's neck problems as severe would be a harmless error, Robertson's other two contentions merit remand.
First, because the ALJ classified several of Robertson's other impairments as severe, any error in failing to categorize Robertson's neck problems as severe was harmless.
That said, whether or not Robertson's neck problems were considered "severe," the ALJ had a duty to consider any impact that those problems may have had on his RFC (Reg. § 416.945(a)(2)). ALJ Bruning concluded that there was no evidence to suggest the neck problems extended beyond August 2010, the last time at which Robertson sought treatment for complaints about shoulder pain associated with his neck injury, and she said that even then there was "no clinical evidence of a medically determinable impairment" underlying that pain (R. 27). That statement is false, however, for while the doctor did not announce a specific diagnosis, he observed a reduced range of motion in Robertson's shoulder and concluded the problem was "possibly cervical radiculopathy" (R. 579). Moreover, Robertson testified at the hearing that he suffered from shoulder pain that made reaching difficult (R. 54-55) — pain that was associated with his neck injuries (R. 344). Because an ALJ has a duty to consider all relevant lines of evidence and resolve any material inconsistencies (
As for Robertson's second contention, ALJ Bruning did err in determining whether Robertson satisfied Listing 1.02A, "Major dysfunction of a joint(s) (due to any cause)" (Reg. Pt. 404, Subpt. P., App'x 1), because she did not properly analyze whether Robertson's avascular necrosis satisfied the listing requirements. Listing 1.02A requires findings of "gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankyloses, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion ... and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s)" with the "[i]nvolvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively" (App'x 1, Listing 1.02A). "Inability to ambulate effectively" is defined in turn as the "extreme limitation of the ability to walk" (App'x 1, Listing 1.00(b)(1)) and includes but is not limited to "the inability to walk a block at a reasonable pace on rough or uneven surfaces" (App'x 1, Listing 1.00(b)(2)).
Although ALJ Bruning determined that Robertson suffered from severe avascular necrosis in both his right and left hips (R. 26) and provided extensive detail as to the evidence regarding that ailment, she did not explain why it failed to meet the Listing 1.02A requirements. More specifically, she did not explain either (1) why avascular necrosis, which is defined as the death of bone cells, would not give rise to a gross anatomical deformity and bony destruction or (2) why Robertson had not lost his ability to ambulate effectively.
Commissioner contends that Robertson's avascular necrosis had healed, at least on the left side. While that may be true, the necrosis had lasted for over a year — a precondition for a disability finding — and the healing took place
Additionally, the ALJ found that Robertson had severe avascular necrosis on the right hip — and neither party disputes that conclusion despite what may seem to be equivocal evidence supporting that finding. In any case, nowhere in her opinion did the ALJ determine that the right side had healed. And as
Even if Robertson's avascular necrosis met the requirements for gross anatomical deformity and resulting bony destruction, Commissioner argues that Robertson fails to meet the Listing 1.02A requirements because he has not lost his ability to ambulate effectively. In that respect Commissioner contends that ineffective ambulation requires the use of a device that "limits the functioning of both upper extremities" (App'x 1, Listing 1.00(b)(1)), and Robertson does not need anything more than a cane. But as already mentioned, ineffective ambulation also encompasses such difficulties as the inability to walk a block at a reasonable pace on rough or uneven surfaces or the inability to carry out routine activities such as shopping and banking (
Of course those several errors would not warrant remand if they were harmless — but they are not. Errors are harmless only if the Court is "satisfied that no reasonable trier of fact could have come to a different conclusion" (
To turn to Robertson's third contention, the ALJ also made a number of analytical errors in arriving at the conclusion that Robertson had the RFC to work. Because those missteps, taken together, cannot possibly be harmless error, they collectively provide a second ground for remand.
Perhaps the most egregious flaw in the ALJ's RFC determination is her two-sentence decision to discredit entirely Robertson's allegations of pain (R. 33):
Although an ALJ's credibility determinations receive deferential review and can be reversed or vacated only where "patently wrong" (
In fact, the "absence of objective medical evidence supporting an individual's statements about the intensity and persistence of pain or other symptoms is only one factor that the adjudicator must consider in assessing an individual's credibility and must be considered in the context of all the evidence" (SSR 96-7p). To that end an ALJ has a duty to "carefully evaluate all evidence bearing on the severity of pain and give specific reasons for discounting a claimant's testimony about it" (
In this instance Robertson has severe medical impairments that are capable of causing pain. Moreover, the medical record is replete with Robertson's complaints about that pain, and doctors have consistently prescribed medication to control it. By not addressing those relevant facts the ALJ failed entirely to draw a logical link from the evidence to his conclusion that Robertson's testimony was not credible (see, e.g.,
ALJ Bruning committed further reversible error when she arbitrarily determined that Robertson had the RFC to sit for 45 minutes at a time, with 1 to 2 minute breaks, for a total of 6 hours per day. No medical evidence supported that conclusion — a state agency doctor opined that Robertson could sit for 6 hours at a time, while Robertson testified that he could sit for only 20 minutes at a time. ALJ Bruning gave the agency opinion "little weight" because "evidence received at the hearing level indicated the claimant was more limited than the consultant had assessed" (R. 35). Yet rather than credit Robertson's testimony or seek further medical opinions, the ALJ decided to "split the baby" and concluded Robertson could sit for 45 minutes at a time.
That violates the clear command repeated in
Robertson further contends (1) that the ALJ erroneously concluded that Robertson had only "moderate limits" (as opposed to "marked limits") in concentration, persistence and pace and (2) that, regardless of whether his limits were moderate or marked, the ALJ failed to incorporate his mental limitations into the RFC analysis. Robertson is correct on both counts.
First, the ALJ concluded, contrary to the psychological consultant's conclusion that Robertson had "marked" limits in concentration, persistence, and pace, that Robertson's limits were only "moderate." Even though a later RFC assessment reached the same conclusion as the ALJ's ultimate judgment that Robertson's limits here were only "moderate," ALJ Bruning did not appear to rely on that later assessment — quite to the contrary, she discounted its conclusions on the ground that it did not adequately incorporate Robertson's "self-reported limitations" (R. 35). Instead the ALJ determined that Robertson had only "moderate" limits because (1) Robertson had held "semi-skilled work" in the past (R. 31), (2) at the time of the hearing Robertson was not receiving treatment for any mental impairment and had been deemed by one physician as "psychiatric stable" (R. 34), (3) on the day that the psychological consultant concluded that Robertson was "markedly" limited in his concentration, persistence and pace, Robertson had clearly related his medical history to another doctor without apparent difficulties (R. 34) and (4) Robertson could drive, pay attention for five minutes, finish what he started and do "okay" in following written instructions (R. 31).
In so concluding, the ALJ failed to draw the requisite logical bridge from the evidence to his conclusion. For one thing, it is unclear why Robertson's
But even if the ALJ properly concluded that Robertson had only "moderate limits" in this area, she failed to incorporate that into the RFC analysis. In posing hypotheticals to the VE, ALJ Bruning made no mention of Robertson's limited concentration, persistence and pace. Rather the ALJ described an individual who could complete "simple repeated routine 3-to 4-step tasks."
Indeed, "[t]he ability to stick with a given task over a sustained period is not the same as the ability to learn how to do tasks of a given complexity" (
Additionally, it may be noted that the ALJ did not analyze Robertson's GAF scores.
ALJ Bruning discredited the opinions of Robertson's wife and aunt on three grounds: first, that neither was a treating source; second, that Robertson's wife's testimony that she helped Robertson to dress and bathe was not supported by "objective evidence"; and third, that each had a personal or proprietary interest in the outcome of the case. But on analysis, those grounds do not support the ALJ's conclusion.
While ALJs are accorded significant deference in evaluating credibility, "errors of fact or logic are not binding on the court" (
Finally, ALJ Bruning's decision to discredit Robertson's wife and aunt on the ground that they had an interest in the case is, at least in effect, not unlike the boilerplate that our Court of Appeals has repeatedly criticized (see, e.g.,
Moreover, SSR 06-3P specifically provides for consideration of the "evidence provided by other `non-medical' sources such as spouses, other relatives, friends, employers, and neighbors." As that SSR goes on to say, while "there is a distinction between what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision, the adjudicator generally should explain the weight given to opinions from these 'other sources' . . . when such opinions may have an effect on the outcome of the case"; factors to consider include "the nature and extent of the relationship, whether the evidence is consistent with other evidence, and any other factors that tend to support or refute the evidence" (SSR 06-3P).
Hence the fact that an individual might have a personal or proprietary interest in the outcome of a case does not automatically mean that they should not be credited at all — on the contrary, the Social Security Administration recognizes that such testimony can be extremely valuable, and
For numerous reasons stated here, both Rule 56 motions are denied, but Robertson's motion to remand is granted. In that respect this Court is of course well aware that the decision as to the handling of a case on remand is to be made by Commissioner and not by the Article III judge or judges who conducted a review of the initial decision, and this Court has always respected that principle. That said, however, this Court would consider itself remiss if failed to say that the discussion that has gone before certainly appears to call for a fresh pair of eyes on remand. In comparable situations our Court of Appeals has found it appropriate to urge a reassignment on remand on a number of occasions (see, e.g.,