JOSEPH F. SAPORITO, JR., Magistrate Judge.
This is an action brought under 42 U.S.C. §405(g), seeking judicial review of the Commissioner of Social Security's ("Commissioner") final decision denying Tanya M. Bankert's ("Bankert") claim for disability insurance benefits under Title II of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge for the preparation of the report and recommended disposition pursuant to the provisions of 28 U.S.C. §636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.
For the reasons stated herein, we respectfully recommend that the decision of the Commissioner be
Bankert is an adult individual born April 26, 1973. Bankert was 41 years old at the time of her alleged onset date of disability — September 2, 2014.
Bankert's age at the onset date makes her a "younger individual" under the Social Security Act. See 20 C.F.R. § 404.1563(d).
Bankert has an associate degree in business management and previously worked as an assistant teacher, childcare provider, and mechanized assembler. (Tr. 264). On September 2, 2014, Bankert protectively filed for disability insurance benefits under Title II of the Social Security Act, alleging her onset date of disability as September 2, 2014. (Tr. 15). Bankert reported that the following impairments prevent her from being able to work: bipolar disorder, depression, anxiety, back injury, knee pain, and sleep apnea. (Tr. 263).
Bankert's claims were initially denied on October 24, 2014. (Tr. 15). Thereafter, she filed a timely request for an administrative hearing on December 16, 2014, and her request was granted. (Id.). Bankert appeared and testified on two separate occasions. (Id.). During the first administrative hearing which was held on October 21, 2016, Bankert appeared and testified before Administrative Law Judge ("ALJ") Charles Bridges in Harrisburg, Pennsylvania. (Tr. 48). However, ALJ Bridges failed to issue a decision. (Doc. 18, at 1). The case was reassigned to ALJ Howard Kauffman and a second hearing was held October 2, 2017, in Harrisburg, Pennsylvania. (Tr. 15). Bankert was represented at both hearings by Attorney Queena Baumbach. (Id.). Attorney Baumbach objected to the reassignment of the case to ALJ Kauffman, but the objection was overruled. (Id.). An impartial vocational expert ("VE"), Sheryl L. Bustin appeared and testified during the first and second administrative hearings. (Id.). At the time of the second hearing, Bankert was 44 years old and resided in Spring Grove, Pennsylvania, which is in the Middle District of Pennsylvania.
In a written decision dated November 27, 2017, the ALJ denied Bankert's application for benefits. (Tr. 12). Bankert sought further review of her claims by the Appeals Council of the Office of Disability Adjudication and Review, but her request was denied for review on September 20, 2018. (Tr. 1). Bankert filed a timely complaint in this court on November 14, 2018, arguing that the ALJ's decision was not in accordance with the law and is not supported by substantial evidence. (Doc. 1, at 2).
On February 4, 2019, the Commissioner's answer was filed which maintained that the ALJ's decision was made in accordance with the law and is supported by substantial evidence. (Doc. 12, at 3). This matter has been fully briefed by the parties and is ripe for decision. (Docs. 18, 19 and 20).
Bankert is five (5) feet, seven (7) inches' tall and weighs 364 pounds. (Tr. 22). She lives with her husband, Alan Bankert, who, throughout Bankert's tumultuous mental and physical health conditions, was diagnosed with renal cancer and underwent a nephrectomy. (Tr. 294). Her daughter, Cora Bankert lives with them. Bankert's most recent and longest serving employer was Harley Davidson. There, she served as a mechanized assembler for a period of ten years, standing eight hours a day, walking up to an hour a day, and pushing 900-pound motorcycles in the crating department. (Tr. 53-54). Prior to her time at Harley Davidson, Bankert worked as an assistant teacher and childcare provider. (Tr. 264). On August 27, 2014, Bankert stopped working due to her worsening physical and mental health conditions. (Tr. 263). Bankert's medical history indicates that her principal concerns involved her inability to work due to her bipolar disorder, depression, anxiety, back injury, knee pain, and sleep apnea. (Tr. 263). Bankert continues to struggle from hypertension, Grave's disease with hypothyroidism, allergies, asthma, and her newly diagnosed diabetes. (Tr. 715). Additionally, after undergoing testing in the summer of 2007, Bankert was diagnosed with obstructive sleep apnea and uses CPAP therapy every night, seven days a week for approximately seven to eight hours a night. (Id.).
In October 2013, Bankert was seen at Partners in Family Health P.C. (Tr. 604-36). At the time of the appointment, Bankert weighed 344 pounds. (Tr. 605). During her initial appointment, she complained of elevated blood pressure, palpitations, chest pain, tightness in the neck, and heaviness in the arms. (Tr. 604). Bankert also stated that she was using Weight Watchers with success, but due to her declining health she was forced to stop exercising. (Tr. 604). Bankert indicated that she tried walking and doing Zumba, but suffered a knee injury, which hindered her efforts to engage in more physical activity. (Tr. 604).
In July 2014, Bankert was seen at OSS Health by Dr. K. Nicholas Pandelidis. (Tr. 523). Bankert complained of brief episodes of sciatica, lower back discomfort, and leg numbness, all of which were worsened by standing and walking. (Tr. 523). Dr. Pandelidis noted that Bankert was overweight with a BMI in excess of 50. (Id.). He diagnosed Bankert with lumbar disc degeneration and grade 2 L5-S1 spondylolisthesis. (Id.). Dr. Pandelidis explained to Bankert that she would not be a viable candidate for surgery without significant weight loss. (Id.). Furthermore, he stated that he did not think it was possible for Bankert to lose weight because of her inability to walk. (Id.). He suggested that Bankert consider gastric bypass surgery and opined that Bankert would benefit from appropriate conservative management. (Id.).
In September 2014, Bankert prepared a function report, wherein she noted her worsening anxiety, irritability, bipolar disorder, and declining physical condition. (Tr. 287). She stated that she found it difficult to sleep, get up in the morning, get dressed, and even harder to leave the house. (Id.). She also stated that at times she experienced unusual behaviors such as sitting in her car, sometimes for hours at a time in her driveway after coming from a place or a location other than home, because she could not get the nerve to go inside. (Tr. 293).
Bankert further indicated that she was unable to squat, bend, or stand for longer than 15 minutes, and walk for longer than 4 to 5 minutes. She has difficulty sitting for long periods of time because her feet become numb. She also has difficulty climbing stairs because it hurts her back, and kneeling is difficult because she is unable to get back up. (Tr. 292). Bankert stated that she experienced difficulty caring for herself and sometimes needs assistance from both her husband and her daughter to put on her bra, socks, and shoes. (Tr. 288). She further stated that she experiences difficulty bathing, including bending down to wash her feet and backside, and when using the restroom, she experiences difficulty wiping and cleaning herself. (Tr. 288).
Also, in September 2014, Bankert's husband, Alan Bankert, prepared a third-party function report, which echoed the statements provided by his wife, concerning her mental health and physical conditions. (Tr. 300-07). Bankert's husband stated that the medical impairments that limit his wife's ability to work, include degenerative back and spine problems, bi-polar disorder, depression, anxiety, and anger issues. (Tr. 300). He stated that Bankert is unable to complete house chores, such as cleaning, cooking, and laundry without the assistance from himself or their daughter, Cora. (Tr. 301). He asserted that Bankert experiences difficulty sleeping, dressing, bathing, using the restroom, and experiences difficulty standing and walking for any length of time or distance. (Id.). His final remarks included the following:
(Tr. 307).
The ALJ afforded little weight to Alan Bankert's opinion. (Tr. 27). The ALJ asserted Alan Bankert's opinion was not supported by the evidence on record, which demonstrated Bankert's exacerbations of back and leg pain that have been responsive to injection and steroid use, Bankert's failure to return to her neurological provider after August 2014 for additional treatment or a prescription of more oral steroids or injections that he indicated could be performed if symptoms persisted, Bankert's failure to undergo further treatment for back symptoms until nearly two (2) years later in August 2016 when she reported experiencing symptoms after sneezing. (Id.). The ALJ also noted that Mr. Bankert's third-party function report was inconsistent with the absence of any indication that his wife followed up with an orthopedic or neurological provider or consulted for injections at that time or thereafter for back-related symptoms. (Tr. 27).
The ALJ further stated that Alan Bankert's opinion was inconsistent with his wife's weight loss in excess of twenty (20) pounds that may have contributed to the absence of the need for treatment for back symptoms, the absence of any documentation indicating that Bankert appealed or contested a denial from her insurance carrier for consultation with a bariatric provider or that Bankert pursued treatment with a weight loss clinic at low to reduced cost aide from attending a diabetes education program and weight watchers, the stable and controlled nature of Bankert's mental health symptoms with medication management with a psychiatric provider, and therapy without the need for more intensive interventions. (Id.). The ALJ further noted that Alan Bankert's statements were inconsistent with the overall medical records concerning the suggested aggravating role that situational stressors played upon Bankert's symptoms and Bankert's ability to go to the beach, to assist in moving the family's residence, and to help and to transport her adult brother and her daughter after the alleged disability onset date. (Id.). Lastly, the ALJ recognized the interest that Bankert's husband may have in supporting Bankert in the application. (Id.).
In October 2016, Bankert was seen by Dr. Preeti Murudkar, her primary care provider. (Id.). He opined that Bankert was capable of lifting ten (10) pounds frequently, twenty (20) pounds occasionally and twenty-one (21) pounds never, carrying twenty (20) pounds frequently and twenty-one (21) pounds never. (Id). Dr. Murudkar further opined that Bankert was capable of sitting for two (2) hours, standing for one (1) hour, and walking for three (3) hours in an eight (8) hour day. (Id.).
He also stated that Bankert was capable of frequent bilateral reaching overhead, handling, fingering, feeling and occasional bilateral reaching, except for overhead, pushing and pulling, operating of bilateral foot controls, climbing of ramps and stairs and balancing, but never climbing of ladders or scaffolds, stooping, kneeling, crouching and crawling, and tolerating occasional exposure to operating a motor vehicle, humidity, wetness, dust, odors, fumes and pulmonary irritants, but never tolerating exposure to unprotected heights, moving mechanical parts, extreme heat or cold or vibration. (Id.). Lastly, Dr. Murudkar opined that Bankert was unable to walk one (1) block at a reasonable pace over rough or uneven surfaces and that any standing, lifting, pulling, sitting, pushing served to aggravate Bankert's medical conditions. (Tr. 991).
The ALJ afforded Dr. Murudkar's medical opinion partial weight. (Tr. 27). The ALJ agreed with some of Dr. Murudkar's lifting, carrying, and postural limitations. (Id.). However, similar to the ALJ's opinion of Alan Bankert's third-party function report, the ALJ stated that the limitations indicated with regard to sitting and standing and the assertion that Bankert would be unable to walk one (1) block at a reasonable pace were too extensive in light of Bankert's experience of exacerbations of back and leg pain that have been responsive to injection and steroid use, Bankert's failure to return to her neurological provider after August 2014 for additional treatment or prescription of more oral steroids or injections that he stated could be performed if symptoms persisted, Bankert's failure to undergo further treatment for back symptoms until nearly two (2) years later in August 2016 when she reported experiencing back symptoms after sneezing, the absence of any indication that Bankert followed up with an orthopedic or neurosurgical provider or consulted with a physician for injections at that time or thereafter for back related symptoms. (Id.).
The ALJ also observed that Murudkar's opinion was inconsistent with Bankert's twenty (20) pound weight loss that may have contributed to the absence of the need for treatment for back symptoms, the absence of any documentation indicating that Bankert appealed or contested a denial from her insurance carrier for consultation with a bariatric provider or that Bankert pursued treatment with a weight loss clinic at low or reduced cost aside from attending a diabetes education program and weight watchers. Further, the ALJ noted Bankert's ability to walk with a normal gait, to provide transportation to family members, to assist in movement of the household, and the exhibition of normal strength and sensation at appointments. (Id.).
In June 2015, it was noted that Bankert had started a walking program and during the fall of 2015 and the winter of 2016, Bankart lost over twenty (20) pounds, reporting that she had joined Weight Watchers and Planet Fitness. (Tr. 23). In January 2016, Bankert exhibited normal sensation. (Id.). In August 2016, Bankert reported to her primary care provider experiencing low back pain with numbness and tingling in her fingers. (Id.). Additionally, Bankert exhibited increased lordosis, her lower extremity reflexes were intact, and she was able to heel and toe walk normally. (Id.). In October 2016, Bankert complained to her primary care provider that her back pain was getting progressively worse. (Id.).
When reviewing the denial of disability benefits, the Court's review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); 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 (1988). 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). 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 decision] 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 the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was reached based upon a correct application of 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); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) ("The [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F. Supp. 2d at 536 ("[T]he court has plenary review of all legal issues . . . .").
To receive disability benefits, 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); see also 20 C.F.R. § 404.1505(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment
The Commissioner follows a five-step sequential evaluation process in determining whether a claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a). Under this process, the Commissioner must determine, in sequence: (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;
In his November 27, 2017 decision denying Bankert's claim, the ALJ evaluated Bankert's application for benefits at each step of the sequential process. At step one, the ALJ found that Bankert had not engaged in substantial gainful activity since September 2, 2014. (Tr. 17). At step two, the ALJ found that the following impairments were medically determinable and severe during the relevant period: degenerative disc disease of the lumbar spine, obesity, bipolar disorder, and anxiety. (Tr. 17). At step three, the ALJ found that Bankert did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, during the relevant period. (Tr. 19).
Between steps three and four, the ALJ assessed Bankert's RFC. The ALJ found that Bankert had the capacity to perform light work as defined in 20 C.F.R. §404.1567(b) with the following limitations:
(Tr. 21).
At step four, the ALJ found that Bankert was unable to perform her past relevant work as a nursery school attendant and a mechanical assembler. (Tr. 28). At step five, the ALJ determined based on Bankert's age, education, work experience, and RFC, that there were a significant number of jobs in the national economy that Bankert could perform, including a bakery worker, final assembler (optical goods) and dowel inspector. (Tr. 29).
Bankert contends that the decision of the ALJ is not supported by substantial evidence of record and she raises four issues on appeal attacking various aspects of the ALJ's decision. We shall address each argument seriatim.
First, Bankert argues that the SSA erred in reassigning her case to a new ALJ. (Doc. 18, at 6). Bankert relies on HALLEX 1-2-8-40, which states that there are only four circumstances which cause a claim to be reassigned to a new ALJ after the original ALJ has held a hearing. Those four circumstances include (1) death, (2) retirement, (3) resignation, or (4) illness exceeding twenty days of the original ALJ. (Id.). Bankert further asserts that due process requires that she be advised as to why her case was being reassigned to a new ALJ and what efforts were made to assist the original ALJ in issuing a decision. (Id.). We are not persuaded by this argument. HALLEX 1-2-1-55F states the following:
HALLEX I-2-1-55, 1993 WL 642977.
On April 24, 2017, Bankert's counsel sent a letter to the original ALJ Charles Bridges indicating that no decision had not been issued in her case-six months after a hearing was held before ALJ Bridges on October 21, 2016. (Doc. 19, at 8). In response, the SSA promptly reassigned her case to ALJ Howard Kauffman and a second hearing was held on October 2, 2017. ALJ Kauffman issued a decision on November 27, 2017. (Tr. 12). In reassigning Bankert's case to ALJ Kauffman, the SSA was acting in accordance with regulatory law by taking corrective action in a case that had become seriously delinquent in providing prompt and orderly dispatch of public service. Further, nowhere in the regulatory law, upon which Bankert relies, does it suggest that the SSA must advise a claimant the reasoning behind reassigning a case to a new ALJ and what efforts were made to assist the original ALJ in issuing a decision. Therefore, we find that the SSA did not err in reassigning Bankert's case to a new ALJ.
Second, Bankert asserts that ALJ Kauffman erred in failing to consider the testimony of Dr. K. Nickolas Pandelidis from the first hearing when he issued his decision. (Doc. 18, at 13). Bankert relies on HALLEX 1-2-8-40, which directs a new ALJ to consider the testimony from a prior hearing. (Id.). She further asserts that ALJ Bridges explained his reasoning for giving the source statement from Dr. Murudhar significant, but not controlling weight. (Id.). Bankert argues that Dr. Murudhar's opinion was supported by Dr. Pandelidis' medical opinion that Bankert was a surgical candidate but for her weight as well as by x-rays. (Id.). However, ALJ Kauffman failed to explain what, if any, weight he gave to the opinion of Dr. Pandelidis that the plaintiff had such severe back pain that she would have required surgery but for her weight. (Id.). We find that the ALJ erred in failing to consider the testimony of Dr. K. Nicholas Pandelidis, but not under the law in which Bankert relies.
Oftentimes, an ALJ must evaluate various medical opinions. When presented with a disputed factual record, it is well-established that the ALJ, not the treating or examining physicians or state agency consultants, must make the ultimate disability and RFC determinations. (Slotcavage v. Berryhill, No., 3:18-CV-1214, 2019 WL 2521634, at *8 (M.D. Pa. Jun. 3, 2019). Thus, where the opinion of the treating physician conflicts with that of other sources, the ALJ may choose whom to credit but "cannot reject evidence for no reason or for the wrong reason." (Id.). Furthermore, the ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding. (Id.). It is equally clear, that an ALJ may not unilaterally reject all medical opinions in favor of the ALJ's own subjective impressions. (Id.). Therefore, provided that the decision is accompanied by an adequate rationale, it is the province and the duty of the ALJ to choose which medical opinions and evidence deserve greater weight. (Id.)
In the instant case, ALJ Kauffman gave partial weight to the medical opinion of Dr. Murudkar, Bankert's primary care provider, who indicated in October 2016, that Bankert was capable of lifting ten (10) pounds frequently, twenty (20) pounds occasionally and twenty-one (21) pounds never, carrying twenty (20) pounds frequently and twenty-one (21) pounds never, sitting for two (2) hours, standing for one (1) hour and walking for three (3) hours in an eight (8) hour day. (Tr. 27). Dr. Murudkar also opined that Bankert could engage in frequent bilateral reaching overhead, handling, fingering and feeling and occasional bilateral reaching, except for overhead, pushing and pulling, operating of bilateral foot controls, climbing of ramps and stairs and balancing, but never climbing of ladders or scaffolds, stooping, kneeling, crouching and crawling. (Id.). He further opined that Bankert could tolerate occasional exposure to operating a motor vehicle, humidity, wetness, dust, odors, fumes, and pulmonary irritants, but never tolerate exposure to unprotected heights, moving mechanical parts, extreme heat or cold or vibration. (Id.). Lastly, Dr. Murudkar postulated that Bankart was unable to walk one (1) block at a reasonable pace over rough or uneven surfaces. (Id.).
The ALJ afforded partial weight to Dr. Murudkar's medical opinion asserting that he agreed with some of the lifting and carrying and postural limitations stated in Dr. Murudkar's opinion. However, the ALJ maintained that the abilities stated with regard to sitting and standing and the indication that Bankert would be unable to walk one (1) block at a reasonable pace were too extensive in light of Bankert's experience of exacerbations of back and leg pain that have been responsive to injection and steroid use, Bankert's failure to return to her neurosurgical provider after August 2014 for additional treatment or prescriptions of more oral steroids or injections, which he indicated could be performed if symptoms persisted, Bankert's failure to undergo further treatment for back symptoms until nearly two (2) years later in August 2016 when she reported experiencing back symptoms after sneezing. (Id.). The ALJ also stated that Dr. Murudkar's opinion was inconsistent with the absence of any indication that Bankert followed up with an orthopedic or neurosurgical provider or consulted for injections at that time or thereafter for back-related symptoms. (Id.). Lastly, the ALJ stated that Dr. Murudkar's medical opinion was inconsistent with Bankert's loss of over twenty (20) pounds that may have contributed to the absence of the need for treatment for back symptoms, the absence of any documentation indicating that she appealed or contested a denial from her insurance carrier for consultation with a bariatric provider or that Bankert pursued treatment with a weight loss clinic at low or reduced cost aside from attending a diabetes education program and weight watchers, and Bankert's ability to walk with a normal gait to provide transportation to family members and to assist in movement of the household and exhibition of normal strength and sensation at appointments.
However, while the ALJ considered the medical opinion of Dr. Murudkar and adequately explained why he afforded partial weight to his medical opinion, the ALJ failed to analyze, acknowledge, or address the medical opinion from Dr. K. Nicolas Pandelidis, one of the only two treating physicians of Bankert supporting her claim for disability.
In July 2014, Bankert was seen at OSS Health by Dr. K. Nicholas Pandelidis. (Tr. 523). Bankert complained of brief episodes of sciatica, lower back discomfort, and leg numbness, all of which were worsened by standing and walking. (Tr. 523). Upon examination, Dr. Pandelidis noted that Bankert was overweight with a BMI in excess of 50. (Id.). He diagnosed Bankert with lumbar disc degeneration and Grade 2 L5-S1 spondylolisthesis. (Id.). Dr. Pandelidis explained to Bankert that she would not be a viable candidate for surgery without significant weight loss. (Id.). Furthermore, he stated that he did not think it was possible for Bankert to lose weight because of her inability to walk. (Id.). He suggested that Bankert consider gastric bypass surgery and opined that Bankert would benefit from appropriate conservative management. (Id.).
We note at the outset that this was one of the only two medical opinions concerning Bankert's abilities and disabilities and it was provided by a treating source, a source whose judgment is to be given close consideration by the ALJ in rendering a decision. Further, the Court finds that the failure to analyze, acknowledge or even address Dr. Pandelidis's medical opinion without adequate explanation, created something of an evidentiary void in this case, particularly with respect to making an informed evaluation of Bankert's RFC. Therefore, we find that the ALJ erred in not considering the testimony of Dr. Pandelidis.
Bankert argues that the ALJ erred in finding the plaintiff's statements were not consistent with the medical evidence. (Doc. 18, at 15). We find that Bankert also prevails on this argument. When assessing a claimant's credibility, the legal standard is clear. When evaluating lay testimony regarding a claimant's reported degree of pain and disability, we are reminded that:
Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014).
Yet, it is also clear that:
McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015) (footnotes omitted).
In the instant case, the ALJ's determination that Bankert's statements were not credible is not supported by substantial evidence because the ALJ failed to make a finding on the credibility of Bankert's statements based on a consideration of the entire case record. The ALJ afforded partial weight to the medical opinion of Dr. Murudkar, Bankert's primary care provider. (Tr. 27). But, the ALJ failed to analyze, acknowledge, address, or even consider the medical opinion on record from one of the only two treating physicians on record, Dr. K. Nicholas Pandelidis. The standard is clear, the ALJ must make a finding on the credibility of an individual's statements based on consideration of the entire case record. The Court finds that the ALJ failed to adhere to this standard because he failed to consider the testimony of Dr. Pandelidis, thus failing to consider the credibility of Bankert's statements against the entire case record. As a result, we find that the ALJ erred in finding that Bankert's statements were not consistent with the evidence.
Lastly, Bankert argues that the ALJ acknowledged that she had moderate limitations interacting with others and in maintaining concentration, persistence, and pace. (Doc. 18, at 14). However, the ALJ failed to include any deficits in concentration, persistence, and pace in his hypothetical question to the VE. (Id.). We disagree. In the instant case, the ALJ's hypothetical question to the VE included the following:
(Tr. 70).
The Third Circuit is clear that deficiencies in intellectual functioning, which include "concentration, persistence, and pace" are accounted for in the phrase used in the hypothetical "simple, routine, repetitive work," which is clearly noted by the ALJ in the present case. Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002).
Additionally, the Third Circuit has concluded that when the ALJ's hypoethical to a VE includes the phrase "simple, routine and repetitive tasks" and this finding is also supported by the state agency psychologist in the functional capacity assessment in which the ALJ relies, the claimant's mental functioning is adequately captured. Ramirez v. Barnhart, 372 F.3d 546, 553 (3d Cir. 2004).
In the instant case, the ALJ considered the medical opinion of Dr. Emanuel Schnepp, a state agency psychological consultant. (Tr. 26). Dr. Schnepp opined that Bankert had mild limitation in her activities of daily living and social functioning, moderate limitation in concentration, persistence or pace, no episodes of decompensation, and is able to meet the basic mental demands of competitive gainful activity on a sustained basis. (Id.). He also opined that Bankert could perform "simple, routine repetitive tasks" in a stable environment. (Tr. 83). Since, the State agency psychological consultant opinion is equivalent to the ALJ's hypothetical, we find that the ALJ did not err in failing to include the deficits in concentration, persistence, and pace in his hypothetical.
Accordingly, for the foregoing reasons,
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 11, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
