BAYLSON, District Judge.
Plaintiff, William Rosa, seeks judicial review of the Social Security Administration's ("SSA") denial of his application for Supplemental Security Income ("SSI"). Rosa contends that the Administrative Law Judge ("ALJ") denied him a full and fair hearing by failing to order a consultative examination of his physical impairments, and failing to obtain the treatment records from his psychiatrist. For the reasons discussed below, the Court agrees that the ALJ erred in failing to obtain Plaintiff's mental health treatment records and will GRANT Plaintiff's motion to remand on this basis.
On December 11, 2009, Plaintiff filed an application for SSI on the basis of a heel injury he suffered in a September 2009 car crash.
On April 13, 2010, Dr. Kurt Maas completed a residual functional capacity assessment of Plaintiff's physical abilities on behalf of the SSA. After reviewing Plaintiff's medical records, Maas concluded that the heel fracture was responding well to treatment (i.e., physical therapy and medication), and that Plaintiff would have the ability to resume work at the medium exertional level by September 2010. On the same day that Maas completed his assessment, the SSA denied Plaintiff's claim for SSI benefits on the grounds that his injury was "not expected to remain severe enough for 12 months in a row to keep [Plaintiff] from working." Administrative Record ("A.R.") at 59.
Following the SSA's denial of his claim, Plaintiff requested a hearing and underwent several medical examinations by Dr. Thomas P. Zavitsanos and Dr. Galina Zeltser. These examinations, which occurred between April 26, 2010 and July 7, 2010, revealed "persistent right foot pain post heel surgery" and "possible" degenerative changes (i.e., "possible radiculopathy per EMG in conjunction with a light peroneal neuropathy"). Id. at 266. Based on indications of degenerative changes, an MRI was conducted of Plaintiff's spine. The MRI showed "minimal disc bulging from L2-L3 through L4-L5," but otherwise "normal height and marrow signal" of the vertebral bodies, and "no significant narrowing of the central canal or neural foramina." Id. at 261. Shortly thereafter, Plaintiff received a steroid injection in his lumbar spine. The record does not contain additional reports of spine-related ailments subsequent to this injection.
Plaintiff's hearing before the ALJ (Gerald Spitz) occurred on November 17, 2010. At the hearing, ALJ Spitz asked Plaintiff: "Is it fair to say, and please correct me if it's not fair to say, that the — what brings you here today, the problem you have, let's say, one year after the accident, is all from the heel and pain from the heel, or do you have some other problems in addition to difficulties arising from ... that damage to your heel?" Id. at 40. The Plaintiff, who represented himself pro se, responded: "Yes. I really can't walk the way I used to walk," adding that he was "constantly in pain" because of the heel. Id.
The ALJ followed up by asking Plaintiff to describe his daily routine. In his response, Plaintiff mentioned "going on doctor visits," including to his "psych doctor." Id. at 41. Plaintiff's reference to having a "psych doctor" prompted the ALJ to ask "where do you go for your mental health?... I don't have that, I don't believe, and I'm [sic] want to go get it." Id. Plaintiff handed the ALJ a one-page document from the Hispanic Community Counseling Services ("HCCS"). The document, dated November 16, 2010, identified Plaintiff as suffering from adjustment disorder (i.e., "309 Adj. Disorder NOS") and stated that he was receiving "psychotherapy" from one of HCCS's therapists (Miguel Cotes) and medications from an HCCS psychiatrist (Dr. Geraldine Mayor). Id. at 270. Plaintiff's admission date was listed as August 16, 2010, and an antidepressant (Citalopram) was listed as one of the medications he was being prescribed.
During the hearing, the ALJ asked Plaintiff a question to clarify the nature of his mental health problem. The ALJ asked, "how do you feel the mental aspects would impact — how do they impact you now? How do you think they would impact on a job?" Id. at 48. Plaintiff responded: "Well, I'm mostly depressed. I mean, I'm — I'm not used to being — how do you say it — dependent on people. Now, I feel like, I don't know, I guess, less than a man, because ... I never needed any help from anybody." Id. Plaintiff, who had previously mentioned having a problem with "anxiety," id. at 39-40, stated that his inability to work or exercise made it difficult for him to get his "mind off of things," id. at 48.
On March 1, 2011, the ALJ issued an opinion denying Plaintiff's disability claim. Although finding Plaintiff's heel injury to be a severe impairment that continued to cause residual pain, the ALJ concluded that Plaintiff retained the residual functional capacity (RFC) to perform light exertional work. The ALJ based this conclusion on both Dr. Maas's RFC assessment in March 2010 and the absence of any reports of spine-related injuries following Plaintiff's steroid injection in June 2010.
With respect to Plaintiff's mental health status, the ALJ stated that he sent HCCS "three requests for treatment records," but "received no response whatsoever." Id. at 14, 16. The ALJ thus limited his consideration of Plaintiff's mental health problems to the evidence already in the record, which the ALJ described as "sporadic and inconsistent references to panic attacks and anxiety" which have "not been well documented or alleged as a disabling condition." Id. at 14. In finding Plaintiff's mental issues to be non-severe, the ALJ gave "significant weight" to a March 2010 review of Plaintiff's pre-HCCS records by state consultant, Dr. James Cunningham. While Dr. Cunningham found evidence of an adjustment disorder, he found no indication of a "severe psych disorder." Id. at 242.
After the ALJ issued his opinion, Plaintiff hired an attorney to file an appeal to the SSA's Appeals Council. Plaintiff's attorney provided the Appeals Council allegedly new and material evidence, including two "ability to do work-related activities" assessments from Dr. Mayor (dated June 2, 2011 and March 15, 2012), and an RFC assessment from Plaintiff's treating podiatrist, Dr. Justin Fleming (dated March 17, 2011).
On July 11, 2012, the Appeals Council denied Plaintiff's appeal. Plaintiff thereupon filed a request for review with this Court. (ECF No. 3). Plaintiff has moved for reversal or remand based on the ALJ's failure to order a consultative examination of his physical injuries and subpoena the mental health treatment records from HCCS. (ECF No. 8).
On May 30, 2013, the Court issued an Order requesting further briefing from the parties on three issues: (1) whether the failure by Plaintiff's attorney to obtain the HCCS treatment records during the Appeals Council proceeding waived Plaintiff's claim with respect to the ALJ's previous failure to obtain these same records;
A district court must uphold an ALJ's disability determination so long as it is supported by "substantial evidence." Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.2005). Substantial evidence is "more than a mere scintilla but may be somewhat less than a preponderance of the evidence." Id. A district court may not "weigh the evidence or substitute [its own] conclusions for those of the fact-finder." Id. "Evidence is not substantial," however, if the ALJ "failed to consider all relevant evidence...." Sanchez v. Comm'r of Soc. Sec., 271 Fed.Appx. 230, 232 (3d Cir.2008) (citing Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir.2000)); see also Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979) (stating that ALJ must consider all "relevant, probative and available evidence").
While a claimant bears the burden of proving his disability, 20 C.F.R. § 404.1512(a), the Third Circuit "has repeatedly emphasized that the special nature of proceedings for disability benefits dictates extra care on the part of the agency in developing an administrative record and in explicitly weighing all evidence," Dobrowolsky, 606 F.2d at 406-07. "ALJs have a duty to develop a full and fair
The Court will begin its analysis by addressing Plaintiff's argument that the ALJ erred in not ordering a consultative examination of his physical injuries. Under SSA regulations, an ALJ "may decide to purchase a consultative examination" where "there is an indication of a change in [claimant's] condition that is likely to affect [claimant's] ability to work."
First, Zavitranos's and Meltzer's initial concern about "possible" degenerative changes was not confirmed by the MRI that Zavitranos subsequently ordered. As the ALJ noted, the MRI found "only minimal disc bulging" and no infringement on the spinal cord. A.R. at 15. Second, according to Zavitranos, the only treatment indicated by these findings was a lumbar steroid injection, and subsequent to this single injection, "there are no further records regarding any back injuries." Id. When the ALJ asked Plaintiff at the hearing whether he was receiving any treatment for his back, Plaintiff said "no." Id. at 46. Although Plaintiff testified to having back pain when he sits down for extended periods of time, Plaintiff did not reference his back when asked if he was alleging disability based on "other problems" besides his heel injury. Id. at 40, 45-46. Finally, while the ALJ gave little credit to Plaintiff's alleged back-related injuries, the ALJ did credit the persistence of Plaintiff's heel pain. Whereas Dr. Maas had previously concluded that Plaintiff could resume work at the medium exertional level by September 2010, the ALJ
The Court is satisfied that the ALJ adequately accounted for Drs. Zavitsanos's and Zeltzer's findings and had a reasonable basis for concluding that Plaintiff did not experience a change in his physical condition that was likely to affect his ability to work.
Plaintiff argues that the ALJ erred by failing to develop the record with respect to his mental impairment. For the reasons that follow, the Court agrees that the ALJ erred, and finds that the error was sufficiently prejudicial to warrant remand.
Since Plaintiff was a pro se claimant, there can be no dispute that the ALJ had a duty to request Plaintiff's psychiatric treatment records from HCCS. See Reefer, 326 F.3d at 380; Comiskey, 2010 WL 308979, at *5. In his opinion, the ALJ states that he made three requests for the records; the Administrative Record, however, contains no evidence of these requests.
The Third Circuit has stated that the adequacy of an ALJ's investigation is determined on a "case-by-case" basis. Reefer, 326 F.3d at 380. In this case, there were several factors — in addition to Plaintiff's pro se status — that heightened the ALJ's duty to obtain Plaintiff's treatment records. These factors included: the ALJ's awareness of the records' existence;
While the ALJ had no control over whether HCCS responded to his requests, he had other options at his disposal to address the situation. First and foremost, he could have issued a subpoena. 20 C.F.R. § 416.1450(d)(1) (stating that an ALJ has authority "on his or her own initiative" to issue and enforce subpoenas for the production of records "[w]hen it is reasonably necessary for the full presentation of a case"). While the controlling regulations speak in terms of when ALJs "may" exercise this authority, some district courts have stated that the authority to issue/enforce subpoenas can become mandatory where, as here, the claimant is pro se. E.g., Jozefick, 854 F.Supp. at 348; Suriel, 2006 WL 2516429, at *4; Jones, 66 F.Supp.2d at 524. As Plaintiff notes, "[i]f the [the ALJ] is not required to subpoena records for an unrepresented claimant from a medical provider who won't provide full treatment records without a subpoena, then her obligation to develop the record is rendered pointless." Pl's Suppl. Br. at 6.
To the extent that the ALJ had a reasonable basis for not issuing a subpoena, his heightened duty obligated him, at a minimum, to notify Plaintiff of his intent to forego considering the HCCS records prior to issuing the opinion. The ALJ owed this to Plaintiff, in part, because of the ALJ's statement at the hearing that he would attempt to obtain the records and would hold off on issuing his final opinion until receiving them. See A.R. at 55 ("[U]pon receipt of the records from Hispanic counseling, I'll review the totality of the records that I have, the testimony, the documents. I'll apply all of it to the statutory law and regulations...."). Having given Plaintiff the reasonable expectation that the final decision would not be issued until the HCCS records were obtained, the ALJ's failure to notify Plaintiff of his intent to issue the opinion in the absence of these records was manifestly unfair. See Jozefick, 854 F.Supp. at 349 ("[The claimant] was clearly justified in believing that efforts would be undertaken to secure evidence from Dr. Dreibelbis, either in writing or by way of testimony, before a decision was made. It is manifestly unfair to have issued a decision without such efforts being pursued."); see also Hess, 497 F.2d at 841 ("[W]e note that although no definite commitment was made [by the ALJ], the claimant may well have inferred that the latest records of the Geisinger Medical Center would be obtained before a decision would be handed down.").
In light of the ALJ's heightened duty in this case to obtain the treatment records, his failure to either subpoena the records or provide notice to Plaintiff of his intent to issue the opinion without considering them, violated Plaintiff's right to a full and fair hearing.
In Shinseki v. Sanders, 556 U.S. 396, 407, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009), the Supreme Court made clear that the "harmless error" rule that reviewing courts apply in "ordinary civil cases," is equally applicable to "administrative cases."
Since the burden of proving prejudice in civil and administrative cases is on the party alleging error, id. at 409, 129 S.Ct. 1696, a quandary is created where the error, as here, led to a deficiency in the evidentiary record. If the evidence that may have been obtained is not yet known, it is naturally difficult to assess the error's impact on the outcome of the proceeding. This, however, is not a barrier to a demonstration of harmfulness. See McLeod, 640 F.3d 881, 887-88 ("Sanders does not mean that the claimant necessarily has to show what other evidence could have been obtained."); Comiskey, 2010 WL 308979, at *7 ("[T]he Third Circuit has not required the claimant to produce the very records to be considered in order to show prejudice....").
The Sanders opinion provides useful guidance for determining when an administrative court's failure to develop the record enables an inference of prejudice. In Sanders, the Court addressed two veteran affairs proceedings where defective notices impeded the claimants' ability to produce evidence of their alleged service-related disability. In one case, the error was held harmless because the claimant did not specify any "specific additional evidence" he would have obtained, or how this evidence "could have made any difference," despite the fact that the claimant had been alleging a service-related disability for over 60 years and had had "numerous medical examinations." Id. at 413, 129 S.Ct. 1696. In the other case, the Court held that remand was warranted because there were reasonable "uncertainties" about the error's impact on the judgment. Id. at 414, 129 S.Ct. 1696. Although the Court acknowledged that "[s]ome features of the record suggest[ed] the error was harmless," remand was appropriate because other evidence in the record suggested that the missing evidence (i.e., an additional medical examination) "might have" have changed the outcome. Id. A failure to develop the record can thus be found harmful in the absence of clear evidence of prejudice.
In this Circuit, district courts have found prejudice where the ALJ's failure to develop the record resulted in "significant evidentiary gaps that are material to the disability determination." Comiskey, 2010 WL 308979, at *7 (quoting Jozefick, 854 F.Supp. at 349). Under Sanders, however, reviewing courts cannot presume prejudice based on per se rules. 556 U.S. at 408, 129 S.Ct. 1696. A finding of prejudice must rest, instead, "on the facts and circumstances of the particular case." Id. at 411, 129 S.Ct. 1696. A reviewing court can, however, take account of the "natural effects" of the error at issue. Id. "Natural effects" are "empirically based generalizations about what kinds of errors are likely, as a factual matter, to prove harmful." Id. In the wake of Sanders, therefore, the existing rule in this Circuit that a claimant is prejudiced when there are "significant evidentiary gaps that are material to the disability determination" is perhaps best viewed as a "natural effect," rather than a presumption.
While the aforementioned factors suggest the ALJ's error was harmless, there are "other features" in this case that "suggest the opposite." See Sanders, 556 U.S. at 414, 129 S.Ct. 1696. First, while the ALJ may have been right that the current record is insufficient to demonstrate a "severe" impairment, a mental impairment need not be severe to have a material effect on a disability determination. This is because mental impairments such as anxiety and depression are considered "nonexertional limitations," 20 C.F.R. § 404.1569a, which must be considered in the ALJ's determination of a claimant's RFC, even when they do not constitute a "severe" impairment under step 2 of the disability analysis. See Sykes v. Apfel, 228 F.3d 259, 261 (3d Cir.2000). While nonexertional limitations must be "significant" to warrant consideration in the RFC determination, id. at 268, the record is sufficient to justify this inference. First, Plaintiff's pre-HCCS medical records contain several references to mental health problems, including "panic attack" and "anxiety," for which Plaintiff was prescribed Xanax. A.R. at 206, 212, 217, 221. Second, in the HCCS document that Plaintiff provided to the ALJ, Plaintiff is identified as suffering from adjustment disorder and receiving ongoing therapy, including anti-depressant medication.
Finally, the RFC assessments from HCCS's Dr. Mayor, while post-dating the ALJ's ruling, provide added plausibility to Plaintiff's claim that the HCCS records could have had a material effect on the outcome. Dr. Mayor assesses that Plaintiff's adjustment disorder has caused a number of "marked" and "extreme" effects on his capacity to understand, remember, and carry out detailed instructions and respond appropriately to work-related pressures. Id. at 272-76. If the HCCS treatment records prior to March 2011 are consistent with Dr. Mayor's recent assessments, the records would be material to the RFC determination, particularly given the "great weight" that courts give to the records of a claimant's treating physician. Plummer, 186 F.3d at 429. ALJ's failure to obtain the treatment records thus produced a "significant evidentiary gap" that was "material" to the disability determination. Courts in this Circuit have recognized that prejudice is a "natural effect" of an error of this kind. See Comiskey, 2010 WL 308979, at *7; Isaac v. Astrue, No. 08-1661, 2009 WL 1492277, at *14 (W.D.Pa. May 28, 2009); Gauthney v. Shalala, 890 F.Supp. 401, 410 (E.D.Pa. Feb.24, 1995); Jozefick, 854 F.Supp. at 348.
Under the circumstances of this case, therefore, the Court finds a sufficient basis to infer that the ALJ's failure to develop a
Based on the foregoing considerations, the Court will GRANT Plaintiff's Motion to Remand. On remand, the ALJ should obtain the treatment records from HCCS as of March 1, 2011, or solicit the testimony of Dr. Mayor as to the status of Plaintiff's mental health during this relevant time period. The ALJ should thereupon reassess its previous RFC determination in light of this additional evidence.
An appropriate order follows.
And NOW, this ___ day of June, 2013, for the reasons discussed in the accompanying memorandum, it is ORDERED that Plaintiffs Motion for Summary Judgment (ECF No. 8) is DENIED, but Plaintiffs Motion for Remand (ECF No. 8) is GRANTED for proceedings consistent with the Court's memorandum pursuant to the fourth sentence of 42 U.S.C. § 405(g).
The Clerk of Court is directed to mark the case as CLOSED for statistical purposes.
