KEVIN NATHANIEL FOX, Magistrate Judge.
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE.
Josephine Albertha Browne ("Browne") commenced this action against the Commissioner of Social Security ("Commissioner"), seeking review of an administrative law judge's ("ALJ") decision, dated September 12, 2017, finding her ineligible for disability benefits, pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Before the Court are the parties' motions for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
The ALJ determined that Browne: (1) meets the insured status requirement through December 31, 2018; (2) has not engaged in substantial gainful activity since July 1, 2014, the alleged disability onset date; (3) "has the following severe combination of impairments: major depressive disorder, migraines, and degenerative disc disease"; (4) does not have an impairment or combination of impairments that meets or medically equals the severity of the listed impairments; (5) has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: "no exposure to hazards, unprotected heights, hazardous machinery, or commercial driving; no ladders, ropes, or scaffolds; unskilled work; and only occasional public and coworker interaction"; (6) is unable to perform any past relevant work; (7) was 61 years old on the alleged disability onset date; and (8) has a limited education and is able to communicate in English. The ALJ found that transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is not disabled regardless of transferable job skills. The ALJ determined that Browne's "condition produces limitations which meet [the] definition of `severe.'" Thereafter, the ALJ found that Browne's "medically determinable impairment of major depressive disorder does not cause more than minimal limitation in her ability to perform basic mental activities and is therefore nonsevere," based on mild limitations in four broad areas of mental functioning, known as "paragraph B criteria": (i) understanding, remembering or applying information; (ii) interacting with others; (iii) concentrating, persisting or maintaining pace; and (iv) adapting or managing oneself. The ALJ accorded "little weight" to: (i) "functional limitations assessed more than a year before the alleged onset date because they are less reliable (Exhibit 1F)"; (ii) "the assessment provided on the undated and unsigned medical source statement form (Exhibit 13F)"; (iii) "the State agency medical and psychological consultants at the initial level (Exhibit 1A)"; and (iv) "the advisement to engage in activity as tolerated or to resume normal activity following hospital treatment (Exhibits 16F at 68, 19F at 6, 8, 33, 61, 73)," and gave "more weight, but not great weight to the assessment by the consultative examiners from April 2015 (Exhibits 9F, 10F)." Considering Browne's age, education, work experience and residual functional capacity, the ALJ found that jobs exist in significant numbers in the national economy that Browne can perform, and she has not been under a disability from July 1, 2014, through the date of the decision. The Appeals Council denied Browne's request for a review of the ALJ's decision.
Browne contends that: (1) the ALJ failed to evaluate properly her mental functioning; (2) the ALJ failed to evaluate properly her residual functional capacity; (3) the ALJ failed to evaluate properly her severe spinal impairment; (4) the ALJ erred in relying on vocational expert testimony when the ALJ failed to pose a hypothetical question that included all of Browne's limitations; (5) the ALJ failed to develop the record; and (6) the Appeals Council failed to give controlling weight to Browne's treating physicians. Concerning the ALJ's evaluation of her mental functioning, Browne asserts that the ALJ found that she: (a) "suffered from severe major depressive disorder"; (b) "had no more than mild limitations in all areas of mental functioning"; and (c) is limited to unskilled work and only occasional public and co-worker interaction. Browne contends that, if her "mental impairment is severe, and if limitations in concentration and social functioning are incorporated into the residual functional capacity assessed for Mrs. Browne, then there must be more than mild limitations in mental functioning pursuant to the Regulations at 20 C.F.R. 404.1520(a)(d)(1)." Browne asserts that the ALJ also found that she "suffered from severe degenerative disc disease" but can perform work at all exertional levels. However, "[i]t is unclear from the decision how the ALJ reasoned that Mrs. Browne could suffer from severe back impairments, yet be capable of performing up to heavy work, which includes lifting and carrying up to 100 pounds at a time." Moreover, the ALJ did not assess properly Browne's ability to perform work activities on a function-by-function basis. Browne asserts that "it is unclear upon what the ALJ based her assessed non-exertional limitations, including no exposure to heights, hazardous machinery, commercial driving, and climbing of ladders, ropes and scaffolds," because two consultative medical examiners provide diverging opinions, neither of which supports the ALJ's findings, and Dr. Marilee Mescon ("Dr. Mescon") opined no limitations. It appears that the ALJ used her own lay interpretation of the medical record to assess the non-exertional limitations. According to Browne, the ALJ declined to credit her testimony that she was not able to lift anything due to her pain, including a gallon of milk, but she did not explain the basis for her decision. The ALJ did not make citation to any evidence in support of her step three finding, failing to evaluate properly Browne's "severe spinal impairment" or make "a single reference to any medical evidence" with respect to the spinal impairment.
Browne contends that the ALJ posed a hypothetical to the vocational expert that indicated she was capable of performing a full range of work at all exertional levels, but stated no limitations regarding her "severe panic attacks, depression, headaches [or] back pain," and the hypothetical did not include "any limitations for lifting, although [she] is limited in this regard by her own testimony." Moreover, the ALJ erred by not including Browne's mental impairments in the hypothetical.
According to Browne, the ALJ failed to develop the record, which the ALJ was under a heightened duty to do, given that Browne was not represented by counsel at the hearing. For example, the ALJ failed adequately to explore the nature and extent of Browne's subjective symptoms, despite numerous references in the medical records and testimony concerning subjective symptoms of serious pain. The ALJ never inquired what caused Browne to leave her job or the full degree of the pain and the extent to which it prevented her from working. Browne was taking in excess of thirteen medications, yet, the ALJ did not ask whether any of these medications caused any side effects that may hinder her daily life or ability to work. The ALJ knew that Browne's daughter was present and wished to testify but the ALJ did not seek corroboration from her about Browne's subjective symptoms. The ALJ should have directed Browne to obtain a more detailed statement from her treating physicians, Dr. Lorenza Freddo, Dr. Randall Berliner and the various treating physicians at St. Barnabas Hospital, before rejecting Browne's statements concerning the intensity, persistence and limiting effects of her symptoms and pain.
Browne submitted additional evidence before the Appeals Council which stated: "We find the evidence does not show a reasonable probability that it would change the outcome of the decision." Browne asserts that the Appeals Council's statement does not satisfy the "good reason for the weight given the treating physician's opinion [standard]; obviously, the ALJ could not explain the rejection of the treating physician's opinions first submitted during appeal, and the Appeals Council failed to offer any explanation for its rejection of those opinions." Thus, Browne was deprived of an opportunity to have new evidence considered under the treating physician rule, and the matter should be remanded.
The defendant contends that the ALJ developed the record adequately, given that Browne "does not argue that any records were actually missing." Contrary to Browne's assertion, the ALJ asked her why she stopped working and she testified that she could not return to work because she was crying all the time, sometimes experienced panic attacks on the bus and used to hear voices. The ALJ also inquired about the type and efficacy of Browne's medications. Except for Trazodone, which was replaced because it made Browne disoriented, the treatment records show that Browne denied consistently any side effects from her medications. Subsequent to the hearing, the ALJ continued gathering evidence on Browne's behalf, including from St. Barnabas Hospital, and the record was sufficient for the ALJ to make a decision.
The defendant asserts that substantial evidence supports the ALJ's finding at step three. Concerning Browne's spinal impairment, the ALJ concluded properly that her impairments, singly or in combination, do not meet or medically equal Listing 1.04 because it does not satisfy its subparagraphs. The ALJ's evaluation of the impact of the alleged mental limitations on Browne's ability to work is supported by substantial evidence because Browne's statements about her functioning constitute substantial evidence that she could perform a full range of work at all exertional levels subject to certain non-exertional limitations. According to the defendant, Browne argues mistakenly that the ALJ's finding that her depression and degenerative disc disease qualified as severe impairments at step two required the ALJ to incorporate significant mental limitations into the residual functional capacity determination. However, an impairment found severe at step two, such as Browne's degenerative disc disease and depression, is not inconsistent with the non-exertional limitations included in the residual functional capacity determination. The evidence also provides substantial support for the ALJ's determination of physical residual functional capacity, despite Browne's difficulty with heavy lifting and reaching and handling due to shoulder pain, because she stated she could care for her personal needs, take public transportation, go shopping, perform household chores, regularly attend church, walk at least a block without rest and sit without difficulty. The ALJ's residual functional capacity assessment is consistent with treatment records showing that physical examinations were routinely unremarkable. Apart from Browne's depressed mood and occasional constricted affect, mental status examinations were also unremarkable, and Browne denied depressive symptoms in January, October and December 2016, and failed to report suicidal auditory hallucinations to any medical provider.
Concerning medical opinions, "the ALJ properly weighed Dr. Mescon's opinion that Plaintiff had no physical limitations," and "although Dr. Mescon's opinion was not due `great weight,' it was due more than the `little weight' accorded to the non-examining, record-based opinion of Dr. R. Gauthier." The defendant maintains that the ALJ "explained, while Dr. Mescon's opinion was internally consistent with and supported by the benign findings upon her physical examination of Plaintiff, it was not entirely consistent with Plaintiff's subjective complaints and the medical treatment she received after Dr. Mescon's examination." The ALJ also explained that the residual functional capacity determination "was more restrictive than Dr. Mescon's functional assessment in order to account for Plaintiff's subjective complaints and history of treatment." The defendant contends that Browne failed to show that the record evidence mandated a more restrictive residual functional capacity determination. The ALJ accorded little weight properly to the opinion that was undated and unsigned, as "it was impossible to determine if the opinion was rendered by a medical professional, let alone one who had either examined or treated Plaintiff," or whether it "was rendered during the relevant period." Moreover, it "was inconsistent with Dr. Mescon's findings and other evidence of record, which included numerous unremarkable physical examinations." The defendant maintains that the ALJ did not have an obligation to supplement the record from Browne's treating sources "because the ALJ had all of her treating records and credited the opinion of Dr. Mescon." The defendant asserts that the ALJ presented a hypothetical question to the vocational expert which reflected the limitations included in the ALJ's residual functional capacity determination and substantial evidence supports the residual functional capacity determination; thus, the ALJ relied properly on the vocational expert's testimony.
The defendant maintains that the Appeals Council reviewed and considered properly the new evidence submitted by Browne, determining that "there was no reasonable possibility that it would have changed the outcome of the case." The new evidence was cumulative, providing information already in the record, and the Appeals Council rejected properly the October 2017 letter because it postdated the period at issue.
Browne asserts that no evidence supported the ALJ's residual functional capacity determination. For example, the ALJ determined that she could perform work at all exertional levels, including heavy work that requires lifting and carrying up to 100 pounds, which ignores the fact that Browne "suffers from severe degenerative disc disease." It is unclear what evidence supports the ALJ's conclusion that Browne could sit, stand and/or walk six hours in an 8-hour workday and the defendant did not identify any. Moreover, the ALJ's conclusion that Browne was limited to unskilled work and only occasional public and coworker interaction ignores the fact that she suffers from panic attacks that cause her to feel like she is dying, and she suffers from migraines. The ALJ did not include any limitations for panic attacks or migraines in the residual functional capacity determination or provide an explanation why they have no impact on her work. Ignoring Browne's migraine in the residual functional capacity determination is sufficient to warrant remand. Although the ALJ discussed Browne's panic attacks, "for some reason, the ALJ did not find [her] attacks to be a severe impairment." Browne asserts that the evidence supports a finding that Browne's panic attacks had a significant effect on her abilities and are severe. Concerning the ALJ's hypothetical question to the vocational expert, the ALJ did not include Browne's mental limitations, and Browne does not have the ability to sustain employment at any level. The defendant failed to make citation to any medical evidence to suggest otherwise.
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
"Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations."
To qualify for disability benefits, an individual must be unable "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 12 months." 42 U.S.C. § 423(d)(1)(A). The Social Security Administration's regulations establish a five-step process for determining a disability claim.
"The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last."
"Unless we give a treating source's medical opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion": examining relationship, treatment relationship, length of the treatment relationship and the frequency of examination; nature and extent of the treatment relationship and evidentiary support for the opinion considered. 20 C.F.R. § 404.1527(c).
The factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) are the "[l]ength of the treatment relationship and the frequency of examination" and "[n]ature and extent of the treatment relationship." 20 C.F.R. § 404.1527(c)(2)(i), (ii). The factors listed in paragraphs (c)(3) through (c)(6) are evidentiary supportability, consistency of the opinion with the record as a whole and medical specialization of the treating source.
Before making a disability determination, the ALJ has an affirmative duty to develop the record and that duty is "heightened" where the claimant is proceeding
The Appeals Council denied Browne's request for a review, making the ALJ's decision the final decision of the Commissioner.
The ALJ's determination of nonexertional limitations is not supported by substantial evidence, since the ALJ accorded "little weight" to: (i) "functional limitations assessed more than a year before the alleged onset date because they are less reliable (Exhibit 1F)"; (ii) "the assessment provided on the undated and unsigned medical source statement form (Exhibit 13F)"; (iii) "the State agency medical and psychological consultants at the initial level (Exhibit 1A)"; and (iv) "the advisement to engage in activity as tolerated or to resume normal activity following hospital treatment (Exhibits 16F at 68, 19F at 6, 8, 33, 61, 73)," while giving "more weight, but not great weight to the assessment by the consultative examiners from April 2015 (Exhibits 9F, 10F)." The ALJ did not comply with the requirements of 20 C.F.R. § 404.1527 because the ALJ did not consider all the factors required to be considered before declining to give controlling weight to the treating sources medical opinions and the ALJ failed to provide a good reason(s) for giving greater weight to non-treating sources' opinions.
The only opinions accorded "more weight, but not great weight" are the April 8, 2015 "Psychiatric Evaluation" by "Psychologist," Arlene Rupp-Goolnick, Ph.D. ("Rupp-Goolnick"), and the "Internal Medicine Examination" by Dr. Mescon. It is not clear how a "Psychiatric Evaluation" by a psychologist can be accorded any weight, given that a psychologist is "[a] nonphysician professional who specializes in the study of human behavior," while a psychiatrist is "[a] physician who specializes in the treatment of mental illness and emotional disorders," and, "[s]ince psychiatrists are physicians, they can diagnose mental disorders, ... prescribe medication, and use psychotherapeutic techniques to treat patients." Psychologist and Psychiatrist, American Medical Association Complete Medical Encyclopedia (2003). Moreover, psychiatry is "[t]he branch of medicine that studies, treats, and prevents mental illness," while psychology is "[t]he branch of science that studies the mind, mental and emotional process, and behavior." Psychiatry and Psychology, American Medical Association Complete Medical Encyclopedia (2003). Although a licensed or certified psychologist is an acceptable medical source, only "[l]icensed physicians (medical or osteopathic doctors)," not licensed or certified nonphysician professionals such as psychologists, can opine on a subject within their respective branches of medicine. 20 C.F.R. § 404.1513(a)(2) (Effective Sep. 3, 2013 to March 26, 2017). Acceptable medical sources include licensed or certified psychologists "for purpose of establishing intellectual disability, learning disabilities, and borderline intellectual functioning only." 20 C.F.R. § 404.153(a)(2) (Effective Sep. 3, 2013 to March 26, 2017). In the "Psychiatric Evaluation" Rupp-Goolnick provided a recommendation, including that Browne "continue with... psychiatric treatment." Given that Rupp-Goolnick is a not a psychiatrist, it is unclear on what basis she recommended that Browne continue with psychiatric treatment, which included psychiatric medication, as noted in the "Medical History" part of the "Psychiatric Evaluation." The ALJ failed to explain and give a good reason(s) for declining to accord controlling weight to Browne's treating sources while giving "more weight, but not great weight" to Rupp-Goolnick and Dr. Mescon. Given that both Rupp-Goolnick and Dr. Mescon indicated no limitations in their respective evaluations, it is unclear what medical evidence supports the ALJ's nonexertional limitations, which appear to be based on the ALJ's own interpretation of the medical evidence.
The ALJ failed to develop the record, despite her heightened affirmative duty to do so because Browne was not represented by counsel at the hearing. For example, the ALJ gave "little weight to the assessment provided on the undated and unsigned medical source statement form (Exhibit 13F)." However, Exhibit 13F is incomplete, which is apparent from Exhibit 13F, containing "Medical Source Statement of Ability To Do Work-Related Activities (Physical)," Social Security Administration, Office of Disability Adjudication and Review, Form HA-1151-BK (04-2009). Form HA-1151-BK (04-2009) consists of seven pages, but the record contains only pages 1 of 7, 2 of 7 and 7 of 7. The signature and date of the medical source preparing the form is contained on page 6 of Form HA-1151-BK (04-2009), which is missing from the record. The ALJ assigned "little weight" to Exhibit 13F because it was "undated and unsigned" without noticing that Exhibit 13F was incomplete and without filling the gap in the record. The record also contains other gaps, which the ALJ neither mentioned in her decision nor filled by developing the record. For example, Exhibit 16F appears to include a document "Printed From: St. Barnabas Hospital Pages 1 of 93." However, pages 25-30, 40-69, 80-82 and 85-93 are missing from the St. Barnabas Hospital document appearing to consist of 93 pages. Exhibit 19F appears to include a document "Printed From: St. Barnabas Hospital" appearing to consist 104 pages, but pages 1-53 and 102-104 are missing. Exhibit 19F also appears to include a document "Printed From: St. Barnabas Hospital" appearing to consist of 80 pages, but pages 1-25, 37-64 and 75-78 are missing. Exhibit 20F appears to include a document "Printed From: St. Barnabas Hospital" appearing to consist of 149 pages, but pages 1-11, 23-29, 35-38, 42-53, 60-70, 77-79 and 92-100 are missing. Exhibit 20F also appears to include a document "Printed From: St. Barnabas Hospital" appearing to consist of 102 pages, but pages 16-17, 33-36, 61-62 and 101-102 are missing. Given that Browne was treated at St. Barnabas Hospital and that the ALJ did not give controlling weight to Browne's treating sources, the ALJ's failure to develop the record was an error.
The ALJ gave "little weight to the advisement to engage in activity as tolerated or to resume normal activity following hospital treatment" because "such post-treatment instructions regarding activity tend to be generic," referencing Exhibits 16F and 19F, appearing to contain treatment notes from Browne's treating sources at St. Barnabas Hospital. The ALJ failed to comply with the requirements of 20 C.F.R. § 404.1527, which mandates that the ALJ consider various factors when declining to give controlling weight to a treating source's medical opinion because the ALJ did not consider those factors, declined to accord controlling weight based on an incomplete record and failed to provide a good reason(s) for not according controlling weight to the opinions of the treating sources.
For the foregoing reasons, I recommend that: (1) the plaintiff's motion for judgment on the pleadings, Docket Entry No. 17, be granted and the matter be remanded for further proceedings; and (2) the defendant's motion for judgment on the pleadings, Docket Entry No. 20, be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections.
