SUSAN E. SCHWAB, Magistrate Judge.
The plaintiff Sallie A. Mantell seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claims for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. We have jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). Because the final decision of the Commissioner of Social Security is not supported by substantial evidence, we recommend that the Court
The Court refers to the transcript provided by the Commissioner. See Doc. 11-1 through Doc. 10-24.
After the Commissioner denied Ms. Mantell's claims at the initial level of administrative review, Ms. Mantell requested an administrative hearing. Admin. Tr. at 27. On December 18, 2014, with the assistance of counsel, she testified at a hearing before Administrative Law Judge (ALJ) Jarrod Tranguch. Id. at 53-87.
The ALJ determined that Ms. Mantell was not disabled within the meaning of the Social Security Act from January 4, 2013, through the date of his decision on March 23, 2015, and so he denied Ms. Mantell's applications for benefits. Id. at 28-52. Ms. Mantell appealed the ALJ's decision to the Appeals Council, which denied her request for review on November 17, 2016. Id. at 1-6. This makes the ALJ's decision the final decision of the Commissioner subject to judicial review by this Court.
In January of 2017, Ms. Mantell began this action by filing a complaint claiming that the ALJ's decision is "erroneous and contrary to settled law." Doc. 1 at ¶ 15. She requests that the Court reverse the ALJ's decision and award her benefits or, in the alternative, remand the case to the Commissioner for a new hearing. Id. The Commissioner filed an answer and a certified transcript of the administrative proceedings. Docs. 10, 11. The parties have filed briefs, and this matter is ripe for decision. Docs. 14, 15, 18.
When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether substantial evidence supports the findings of the final decision-maker. See 42 U.S.C. §§ 405(g), 1383(c)(3); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence "does not mean a large or considerable amount of evidence, but rather `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's] finding from being supported by substantial evidence." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). "In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole." Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not whether Ms. Mantell was disabled, but whether substantial evidence supports the Commissioner's finding that she was not disabled and the Commissioner correctly applied the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.") (alterations omitted); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary).
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability 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), 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1505(a), 416.905(a).
To receive disability insurance benefits under Title II of the Social Security Act, a claimant must show that he or she contributed to the insurance program, is under retirement age, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).
In determining whether the claimant is disabled, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience, and residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of the claimant's medically determinable impairments, including any non-severe impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her from engaging in any of his or her past relevant work. 42 U.S.C. §§ 423(d)(5), 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by reference); 20 C.F.R. §§ 404.1512, 416.912;
The ALJ's disability determination must also meet certain basic substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for the disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must provide "a clear and satisfactory explication of the basis on which" his or her decision rests. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved, and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-07. In other words, "[t]he ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999).
On March 23, 2015, the ALJ denied Ms. Mantell's claims for benefits. Applying the sequential-evaluation process, the ALJ determined that Ms. Mantell was not disabled within the meaning of the Social Security Act.
At step one of the sequential-evaluation process, the ALJ found that Ms. Mantell had not engaged in substantial gainful activity since January 4, 2013. Admin. Tr. at 34.
At step two of the sequential-evaluation process, the ALJ found that Ms. Mantell had the following severe impairments: headaches, plantar fasciitis, degenerative disc disease of the lumbar spine with lumbar radiculopathy, cervicalgia and cervical radiculopathy, obesity, diabetes mellitus-Type II, and depression. Id. He also determined that Ms. Mantell had the non-severe impairments of incontinence, fibromyalgia, atypical chest pain, sleep apnea, and age-related macular degeneration. Id. at 34-35.
At step three of the sequential-evaluation process, the ALJ found that Ms. Mantell did not have any impairment or combination of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 35-37. More specifically, the ALJ discussed Listings 1.02, 1.04, 9.00, 11.04, and 12.04, and determined that Ms. Mantell did not meet those Listings. Id.
Between steps three and four of the sequential-evaluation process, the ALJ assessed Ms. Mantell's RFC. In making this RFC assessment, after reviewing Ms. Mantell' medical records, id. at 38-43, the ALJ reviewed Ms. Mantell's testimony, including her testimony that "she cannot work because she cannot sit or stand for long periods of time and her hands go numb," that her medications make her tired, that she has constant pain in her back and pain that runs down her legs, that "she hurts all the time all over her whole body," that she has "pounding headaches," "she gets six headaches a week and they last all day," that "she gets counseling for depression and she cries a lot," that "she spends her days sitting for a while and a lot of time she is in bed," that "she does a little bit of cooking, but no cleaning or vacuuming" and "her boyfriend does most of the grocery shopping," that "she is in constant pain," and that "she falls two or three times a month when walking," id. at 43-44.
The ALJ then found that Ms. Mantell's medically determinable impairments reasonably could be expected to produce her alleged symptoms. Id. at 45. But he found that Ms. Mantell's statements regarding the "intensity, persistence and limiting effects" of her symptoms were "not entirely credible":
Id. at 45.
The ALJ found that Ms. Mantell had the RFC to perform sedentary work except that she "is able to lift and carry up to twenty pounds occasionally and [to] frequently lift[] up to ten pounds." Id. He also determined that she "is able to stand and/or walk for four hours in an eight-hour workday" but that she "must be able to use a cane when standing or walking." Id. Further, the ALJ determined that she could "sit for up to eight hours in an eight-hour workday." Id. at 38. According to the ALJ, Ms. Mantell could "occasionally use her upper and lower extremities for pushing and/or pulling[,] the operation of levers, hand controls, foot controls, and pedals"; and she could "occasionally balance, stoop, kneel, and crouch, use ramps, and climb stairs." Id. But Ms. Mantell "must avoid crawling and climbing on ladders, ropes, and scaffolding"; she "should avoid concentrated exposure to wet conditions, vibrations, loud noise, pulmonary or respiratory irritants such as fumes, strong odors, dusts, gases, and work environments with poor ventilation" as well as "hazards such as unprotected heights and dangerous moving machinery." Id. The ALJ also determined that Ms. Mantell "is limited to unskilled work involving simple, routine tasks." Id.
At step four of the sequential-evaluation process, the ALJ found that Ms. Mantell had no past relevant work. Id. at 46.
At step five of the sequential-evaluation process, considering Ms. Mantell's age, education, work experience, and RFC, as well as the testimony of a vocational expert, the ALJ found that there were other jobs—such as small parts assembler, video monitor, and information clerk—that exist in significant numbers in the national economy that Ms. Mantell could perform. Id. at 46-47.
In sum, the ALJ concluded that Ms. Mantell was not disabled from January 3, 2013, until the date of the ALJ's decision. Id. at 47.
Ms. Mantell contends, among other things, that the ALJ erred by failing to consider a statement from her granddaughter and a statement from her boyfriend, both of whom lived with her. Ms. Mantell's granddaughter—Ms. Breiner—and Ms. Mantell's boyfriend—Mr. Kocher—submitted handwritten letters addressing Ms. Mantell's condition and limitations. After discussing what Ms. Mantell used to be able to do, Ms. Breiner addressed what Ms. Mantell currently does:
Admin. Tr. at 263 (spelling and grammar errors in original).
Id. at 265 (spelling and grammar errors in original).
"The ALJ has a duty to hear and evaluate all relevant evidence in order to determine whether an applicant is entitled to disability benefits." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981) (footnote omitted). The "ALJ may not reject pertinent or probative evidence without explanation." Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, `"the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.'" Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Cotter, 642 F.2d at 705). A "reviewing court may remand a case to the [Commissioner] for good cause, `where relevant, probative and available evidence was not explicitly weighed in arriving at a decision on the plaintiff's claim for disability benefits.'" Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979) (quoting Saldana v. Weinberger, 421 F.Supp. 1127, 1131 (E.D. Pa. 1976)).
The Third Circuit has determined that an ALJ's failure to address the testimony of third-party witnesses constitutes error that warrants remand:
Burnett, 220 F.3d at 122. And judges of this Court have also held that "[a]n administrative law judge cannot ignore third party witness statements when judging the credibility of a claimant." Peak v. Astrue, 4:10-CV-00889, 2011 U.S. Dist. LEXIS 152837, at *32 (M.D. Pa. Jan. 24, 2011) (remanding case to the Commissioner because, among other reasons, the ALJ failed to acknowledge statements by the claimant's wife, step-daughter, and friend that corroborated claimant's limitations); Farner v. Colvin, No. 3:15-CV-1559, 2017 WL 663243, at *12 (M.D. Pa. Feb. 17, 2017) ("Based on the holding in
The Commissioner's contention that the ALJ was not required to weigh the statements from Ms. Mantell's granddaughter and boyfriend is simply wrong. The Commissioner asserts that the "ALJ is permitted to use evidence from non-medical sources at his discretion—it is not mandatory." Doc. 15 at 6. She cites to portions of 20 C.F.R. § 404.1513, § 416.913 and SSR 96-7p that use the permissive phrase "may" in the context of discussing evidence from nonmedical sources. See 404.1513(d) ("In addition to evidence from the acceptable medical sources listed in paragraph (a) of this section, we may also use evidence from other sources to show the severity of your impairment(s) and how it affects your ability to work. Other sources include, but are not limited to—. . .(4) Other non-medical sources (for example, spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy)."); 416.913(d) (same); SSR 96-7p, 1996 WL 374186 at *8 (July 2, 1996) ("Other sources may provide information from which inferences and conclusions may be drawn about the credibility of the individual's statements. Such sources may provide information about the seven factors listed in the regulations and may be especially helpful in establishing a longitudinal record. Examples of such sources include public and private agencies, other practitioners, and nonmedical sources such as family and friends.").
But the Commissioner's citation to these regulations and one portion of SSR 96-7p for the proposition that the ALJ had discretion whether to consider the evidence from Ms. Mantell's granddaughter and boyfriend is disingenuous given that the regulations and SSR 96-7p repeatedly provide that the ALJ must consider all the evidence including such third-party evidence. See 20 C.F.R. § 404.1512(b)(3) (defining evidence to include "[s]tatements you or others make about your impairment(s), your restrictions, your daily activities, your efforts to work"); § 416.912(b)(3) (same); § 404.1529(a) ("We will consider all of your statements about your symptoms, such as pain, and any description you, your treating source or nontreating source, or other persons may provide about how the symptoms affect your activities of daily living and your ability to work." "In evaluating the intensity and persistence of your symptoms, including pain, we will consider all of the available evidence, including your medical history, the medical signs and laboratory findings and statements about how your symptoms affect you."); § 416.929(a) (same); § 404.1529(c)(1) ("In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence, including your history, the signs and laboratory findings, and statements from you, your treating or nontreating source, or other persons about how your symptoms affect you."); § 416.929(c)(1) (same); § 404.1529(c)(3) ("Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, we will carefully consider any other information you may submit about your symptoms. The information that you, your treating or nontreating source, or other persons provide about your pain or other symptoms (e.g., what may precipitate or aggravate your symptoms, what medications, treatments or other methods you use to alleviate them, and how the symptoms may affect your pattern of daily living) is also an important indicator of the intensity and persistence of your symptoms."); § 416.929(c)(3) (same); SSR 96-7p, 1996 WL 374186 at *1 ("In determining the credibility of the individual's statements, the adjudicator must consider the entire case record, including the objective medical evidence, the individual's own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record."); id. at *2 ("whenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. This includes . . . any statements and other information provided by . . . other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record."); id. at *4 ("If an individual's statements about pain or other symptoms are not substantiated by the objective medical evidence, the adjudicator must consider all of the evidence in the case record, including any statements by the individual and other persons concerning the individual's symptoms."); id. ("When evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record . . . ."); id. at *5 ("Assessment of the credibility of an individual's statements about pain or other symptoms and about the effect the symptoms have on his or her ability to function must be based on a consideration of all of the evidence in the case record. This includes, but is not limited to: . . . Statements and reports from . .. other persons about the individual's medical history, treatment and response, prior work record and efforts to work, daily activities, and other information concerning the individual's symptoms and how the symptoms affect the individual's ability to work."); id. ("Consideration of the individual's statements and the statements and reports of medical sources and other persons with regard to the seven factors listed in the regulations, along with any other relevant information in the case record, including the information described above, will provide the adjudicator with an overview of the individual's subjective complaints. The adjudicator must then evaluate all of this information and draw appropriate inferences and conclusions about the credibility of the individual's statements." (footnote omitted); id. at *5-6 ("One strong indication of the credibility of an individual's statements is their consistency, both internally and with other information in the case record. The adjudicator must consider such factors as: . . . The consistency of the individual's statements with other information in the case record, including reports and observations by other persons concerning the individual's daily activities, behavior, and efforts to work.").
Thus, we reject the Commissioner's assertion that the regulations and SSR 96-7p give the ALJ discretion as to whether to consider nonmedical third-party evidence. See Maellaro v. Colvin, No. 3:12-CV-01560, 2014 WL 2770717, at *12 (M.D. Pa. June 18, 2014) ("The Commissioner encourages claimants to submit third party statements, and recognizes the relevance of statements from individuals who know the claimant. See 20 C.F.R. §§ 416.912, 416.913 and 416.929; SSR 96-7p and 96-8p. Third party statements can support a claimant's credibility, and help evaluate the claimant's impairments, symptoms, limitations, functioning, and activities of daily living."); see also Richards v. Colvin, 223 F.Supp.3d 296, 306 (M.D. Pa. 2016) ("Social Security Ruling 06-03p requires that the ALJ explain the weight given to non-medical sources.").
Moreover, "the Third Circuit Court of Appeals requires an ALJ to consider and weigh all of the non-medical evidence before [him or] her." Smith v. Berryhill, No. 3:16-CV-2085, 2017 WL 1832337, at *14 (M.D. Pa. May 8, 2017) (citing Burnett, 220 F.3d at 122); see also Caraballo v. Colvin, 1:14-CV-647, 2015 WL 6501223, at *1, 8 (M.D. Pa. Oct. 27, 2015) (adopting Report and Recommendation of a magistrate judge that stated that "Burnett plainly states that the Third Circuit `expect[s] the ALJ to address the testimony of such additional witnesses'" and concluding that ALJ's failure to address the report of the fiancé of the claimant's son, which "was probative evidence that was not overwhelmed by countervailing evidence" "precludes meaningful review of his credibility assessment") Liszka v. Colvin, No. 3:14-CV-0280, 2015 WL 3771238, at *2-3 (M.D. Pa. June 17, 2015) (stating that "[t]he language of Burnett is broad" and rejecting the Commissioner's objection that the report of a magistrate judge, who recommended that the case be remanded for further proceedings because the ALJ did not address the witness statement of the claimant's brother, was "based on an overly broad application of Burnett").
Although "[t]he ALJ must consider all relevant evidence when determining an individual's residual functional capacity," Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001), "the ALJ need not undertake an exhaustive discussion of all the evidence." Richards, 223 F. Supp. 3d at 304 (citing Hur v. Barnhart, 94 F. App'x. 130, 133 (3d Cir. 2004) ("There is no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record.")). "Admittedly, `[i]n some circumstances, a piece of evidence can be so lacking in probative value, or so overwhelmed by countervailing evidence, that it can be implicitly rejected without explanation.'" Caraballo, 2015 WL 6501223, at *7 (quoting McConnell v. Astrue, 3:09-44, 2010 WL 2925053, at *9 (W.D. Pa. July 20, 2010)). But here, the statements of Ms. Mantell's granddaughter and boyfriend, both of whom lived with her, corroborated some of the limitations to which Ms. Mantell testified she experiences. Thus, the statements are not lacking in probative value. Further, one of the bases for the ALJ's conclusion that Ms. Mantell's was not entirely credible is that she cares for her granddaughter, and her granddaughter's statement is relevant to what she actually does in that regard. And the medical evidence and opinions (some of which the ALJ gave only limited weight) in the record are not so one sided that we can say that the statements are so overwhelmed by countervailing evidence that they could be rejected without explanation. In addition, the statements of Ms. Mantell's granddaughter and boyfriend could be seen to corroborate in part the medical source statement made by Kyle Maza, a physician's assistant who was Ms. Mantell's primary care provider. The ALJ assigned only limited weight to Mr. Maza's opinion that Ms. Mantell would need unpredictable rest periods beyond the standard breaks normally provided. See Admin. Tr. at 909 (medical source statement from Mr. Maza stating that Ms. Mantell would need two to four rest periods of 30 minutes each of "unpredictable rest periods during a work shift beyond the standard breaks") and 46 (decision of the ALJ giving limited weight to the opinion of Mr. Maza because he is not an acceptable medical source and stating that "[t]he need for breaks is not supported by the objective medical evidence or minimal clinical findings in his records"). If the ALJ credited the statements of Ms. Mantell's granddaughter and boyfriend that provide that Ms. Mantell gets tired very quickly and frequently, he may view Mr. Maza's opinion regarding the need for additional breaks differently than he did.
The Commissioner also suggests that any error by the ALJ in failing to consider the statements of Ms. Mantell's granddaughter and boyfriend was harmless. "Ordinarily, failure to address a third-party statement is reversible error." Prall v. Colvin, 3:12-CV-01681, 2014 WL 2579642, at *10 (M.D. Pa. June 9, 2014). But in under certain circumstances such error may be harmless. Id. (concluding that the failure to address the third-party statements of claimant's mother was harmless error because those statements, which addressed conditions that had come under control as well as "memory and concentration problems, which the ALJ found credible and adequately accounted for," "neither buttressed Prall's testimony nor called into question the ALJ's credibility analysis").
Here, the Commissioner suggests that any error by the ALJ was harmless because the statements of Ms. Mantell's granddaughter and boyfriend were cumulative of Ms. Mantell's testimony. In support of that assertion, the Commissioner cites Crosby v. Barnhart, 98 F. App'x 923, 926 (3d Cir. 2004), in which the Third Circuit, without citing Burnett, summarily concluded that any error by the ALJ in rejecting the claimant's fiance's affidavit detailing her daily physical limitations was harmless because "[t]he fiance's description of Crosby's limitations mirrored her own description, which the ALJ considered." The Commissioner also cites a number of decisions from the Eastern District of Pennsylvania. See e.g., Middleton v. Colvin, No. 2:15-CV-1419, 2016 WL 244930, at *3 (E.D. Pa. Jan. 21, 2016) (concluding that any error by the ALJ in failing to consider the lay witnesses' statements was harmless because those statements merely repeat claimant's own testimony, which the ALJ explicitly rejected, and the statements would not cause the ALJ to discount the contrary medical evidence); Privette-James v. Colvin, No. CIV.A. 12-CV-610, 2015 WL 4743769, at *2 (E.D. Pa. Aug. 11, 2015) (concluding that "even if the ALJ did not consider the lay witnesses' statements when making his decision, this error was harmless and does not require remand" because the statements "would not have changed the ALJ's conclusions regarding Plaintiff's residual functional capacity or her credibility" and are cumulative); Butterfield v. Astrue, No. CIV.A. 06-0603, 2011 WL 1740121, at *6 (E.D. Pa. May 5, 2011) (noting that "[i]n many cases, courts have found that an ALJ's failure to address lay opinion testimony, although technically in violation of applicable legal standards, did not require remand since the testimony would not have changed the outcome of the case" and citing cases); Bailey v. Astrue, No. CIV.A. 07-4595, 2009 WL 577455, at *1, 11 (E.D. Pa. Mar. 4, 2009) (adopting R&R of a magistrate judge that concluded that the testimony of claimant's mother was cumulative of claimant's testimony and "does not reveal anything new which would cause the ALJ to discount the contrary medical evidence").
In Burnett, however, the Third Circuit rejected the Commissioner's contention that the ALJ did not need to consider testimony of third-party witnesses on the basis that their testimony added nothing to the testimony of the claimant and concluding that "ALJ made a credibility determination regarding Burnett, and these witnesses were there to bolster her credibility." Burnett, 220 F.3d at 122. Burnett is a published decision of the Third Circuit, whereas Crosby is not. Thus, we apply Burnett rather than Crosby, and the decisions from the Eastern District are not binding on this court. See Shoemaker v. Colvin, 1:14-CV-02049, 2015 WL 9690310, at *14 (M.D. Pa. Dec. 18, 2015) (report and recommendation of a magistrate judge) ("Unlike Burnett, the cases cited by Defendant are not binding precedent on the Court. In contrast, Burnett plainly states that the Third Circuit `expect[s] the ALJ to address the testimony of such additional witnesses.'" (quoting Burnett, 220 F.3d at 122)), report and recommendation adopted, 2016 WL 107962, at *1 (M.D. Pa. Jan. 11, 2016).
There are some decisions from this Court that suggest that an ALJ's failure to consider statements from third-party witnesses is harmless error because such statements are cumulative of the testimony of the claimant. For example, in one case, the Court concluded that remand was not necessary where an ALJ failed to consider the testimony of the claimant's mother because it was cumulative of other testimony in the record:
Brandt v. Colvin, 3:13-CV-02165, 2014 WL 4793956, at *6 (M.D. Pa. Sept. 24, 2014) (footnote omitted); cf Putman v. Colvin, No. 3:15-CV-412, 2016 WL 1301048, at *7 (M.D. Pa. Apr. 4, 2016) (concluding that ALJ's failure to expressly assign a particular weight to the hearing testimony of claimaint's husband does not require remand where the ALJ did reference the testimony and where the testimony was, "in large part, cumulative" of claimant's own testimony and citing cases that `"have found that an ALJ's failure to address lay opinion testimony, although technically in violation of applicable legal standards, [does] not require remand since the testimony would not have changed the outcome of the case'" (quoting Butterfield, 2011 WL 1740121, at *6).
Whatever the merit of the conclusions in the cases holding that the third-party statements were cumulative of other evidence in the record, here, we conclude that the statements by Ms. Mantell's granddaughter and boyfriend, both of whom lived with her, were not merely cumulative of other evidence in the record. In this case, the statements corroborated the testimony of Ms. Mantell as to her subjective complaints and how her impairments limited her, which was an important issue that was open to dispute. Thus, the statements were not merely cumulative. Cf Branch v. Sweeney, 758 F.3d 226, 235-36 (3d Cir. 2014) (concluding in connection with a petition for a writ of habeas corpus that the purported testimony of two uncalled witnesses who would have corroborated the defendant's version of events was not cumulative even though two other witnesses did testify corroborating the defendant's version of the events given that "rather than addressing matters that were peripheral or that other testimony covered adequately and conclusively, [the two uncalled witnesses's] written statements addressed matters that at trial were both sharply disputed and critical").
Further, if found credible, the statements by Ms. Mantell's granddaughter and boyfriend paint a very different picture of the degree to which Ms. Mantell's impairments limited her than found by the ALJ. If credited, the statements may cause the ALJ to change his view as to Ms. Mantell's credibility. Thus, we cannot say that the ALJ's failure to consider the statements was harmless error. See Burnett, 220 F.3d at 122 (rejecting Commissioner's argument that the testimony of the claimant's husband did not add anything more than stating that the claimant's testimony was truthful, concluding that the husband's testimony corroborated the claimant's testimony, and remanding for further proceedings); Peak, 2011 U.S. Dist. LEXIS 152837, at *32 (remanding case to Commissioner because, among other reasons, the ALJ failed to acknowledge statements by the claimant's wife, step-daughter, and friend that corroborated claimant's limitations); Farner, 2017 WL 663243, at *12 n.8 (noting that "it cannot be determined with certainty that the outcome of the case would have been the same had the ALJ directly addressed the testimony of Plaintiff's wife because the rationalizations provided by Defendant in support of the ALJ's decision that the outcome of the disability determination would have been the same if the ALJ addressed Plaintiff's wife's testimony substances are post-hoc rationalizations as they were not discussed by the ALJ in his opinion"); Haubert, 2015 WL 1471477, at *6 (concluding that because the ALJ did not address statement of the claimant's daughter, "the Court is bound by Burnett to . . . remand on this ground"); Hess, 2014 WL 901144, at *11(remanding the case to the Commissioner because the ALJ failed to discuss or explain her reasons for rejecting the claimant's employer's handwritten statement, which tended to corroborate the claimant's testimony and bolster her credibility).
In sum, we conclude that the ALJ erred by failing to address the statements by Ms. Mantell's granddaughter and boyfriend and we cannot say that that error was harmless. Thus, the ALJ's decision was not supported by substantial evidence. Accordingly, we recommend that the Court vacate the decision denying Ms. Mantell's claims and remand the case to the Commissioner. Given that conclusion, we do not address Ms. Mantell's remaining arguments that the ALJ's decision is not supported by substantial evidence and that the ALJ committed errors in evaluating the evidence. Burns v. Colvin, 156 F.Supp.3d 579, 598 (M.D. Pa. 2016) (adopting Report and Recommendation of magistrate judge that declined to address other allegations or error because "[a] remand may produce different results on these claims, making discussion of them moot"). Although we ultimately find that remand is necessary, nothing in our decision is meant to suggest what the result should be on remand. Rather, that task remains the duty and province of the ALJ on remand.
Accordingly, for the foregoing reasons,
The parties are further placed on notice that pursuant to Local Rule 72.3:
