WILLIAM L. STANDISH, District Judge.
Plaintiff, Jamie Elizabeth Dumond, seeks judicial review of a decision of Defendant, Commissioner of Social Security
Plaintiff filed an application for disability insurance benefits on September 2, 2009, alleging disability since August 12, 2009 due to foot pain and swelling.
The ALJ issued a decision on May 23, 2011, denying Plaintiff's application for disability insurance benefits based on his determination that, despite severe impairments, Plaintiff retained the residual functional capacity ("RFC") to perform work existing in significant numbers in the national economy.
Plaintiff's testimony during the hearing before the ALJ may be summarized as follows:
Plaintiff was born on August 31, 1962. She is married and resides with her husband. At the time of the hearing, Plaintiff, who is 5'3" tall, weighed 298 pounds. With regard to education, Plaintiff is a high school graduate. In the past, Plaintiff has worked in a cafeteria, in the deli department of a grocery store, as the manager of a floral shop and as a meat packer. Plaintiff stopped working on June 3, 2009 due to foot and leg pain.
Plaintiff has been diagnosed with Haglund's deformity.
Plaintiff has a driver's license, and she drives a few times a week. (R. 27). On a typical day, Plaintiff rises, takes a shower, gets dressed and sits down with her feet elevated. She then alternates between performing household chores and sitting down to elevate her feet. Plaintiff shops for groceries with her husband. However, she returns to their car to sit while he checks out. With respect to social activities, Plaintiff visits her mother where she can sit in a recliner. (R. 35-36). As to hobbies, Plaintiff plays the piano. She also watches television and reads the Bible.
At the hearing on Plaintiff's application for disability insurance benefits, the ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education and work experience who (a) can lift and carry 20 pounds occasionally and 10 pounds frequently; (b) can stand or walk for 2 hours during an 8-hour workday; (c) can sit for 6 hours during an 8-hour workday; (d) can never climb ladders, ropes or scaffolding; (e) can only balance occasionally; (f) can frequently handle and finger; and (g) must avoid all exposure to heights and moving machinery.
Plaintiff's representative then asked the VE whether an individual who missed 3 or more days of work a month due to a medical condition would be employable, and the VE testified that she would not. To follow-up on the representative's question, the ALJ asked the VE whether 2 absences a month would be tolerated by an employer, and the VE replied: "no." (R. 42-43).
On August 12, 2009, Plaintiff was seen by Dr. Kreig Spahn, her primary care physician ("PCP"), for complaints of pain and swelling in her feet that was aggravated by working on a concrete floor.
Plaintiff's follow-up visit with Dr. Sieber occurred on September 2, 2009. Plaintiff reported that she had obtained little pain relief from the heel lifts, and that she had to quit her job due to the pain. In addition to bilateral Haglund's deformity, Dr. Sieber assessed Plaintiff with bilateral equinus.
Plaintiff returned to her PCP, Dr. Spahn, on September 9, 2009 for "management." The notes of this office visit indicate that Plaintiff planned to file a claim for disability based on the pain in her feet; that shoe inserts had helped but did not take Plaintiff's pain away; and that Plaintiff was not interested in surgery which had been suggested by Dr. Seiber. Dr. Spahn's assessment of Plaintiff during this office visit included edema and worsening osteoarthritis in her ankles and feet.
On September 23, 2009, Plaintiff returned to Dr. Sieber for a follow-up visit. Plaintiff reported that her feet were "feeling better" with PT. Plaintiff's physical examination revealed more ROM at the ankle joints; muscle strength of 5/5; and muscle tone within normal limits. Plaintiff was instructed to complete PT and to return as needed. (R. 207). Plaintiff was seen by Dr. Spahn the next day to follow-up on her edema. Plaintiff reported some water weight loss and some cramping in her legs. Dr. Spahn described Plaintiff's edema as "improved." (R. 200).
On December 2, 2009, Dr. Sieber prescribed further PT for Plaintiff for the Haglunds' deformity and complaints of equinus. (R. 236). Plaintiff commenced PT at Keystone Rehabilitation Systems the next day. (R. 230-31, 234-35).
On December 22, 2009, Gary Empfield, a non-medical State agency disability examiner, completed a Physical RFC Assessment of Plaintiff based on a review of her file. With respect to exertional limitations, Mr. Empfield opined that Plaintiff could occasionally lift and carry 20 pounds
Plaintiff returned to Dr. Spahn for management of her foot pain on January 12, 2010. Plaintiff's blood pressure was 192/84, and her physical examination revealed diffusely swollen feet bilaterally and Achilles' tendon tenderness with bony prominence. Dr. Spahn's assessment was worsening hypertension and worsening osteoarthritis in Plaintiff's ankles and feet. Plaintiff was prescribed hydrochlorothiazide for her hypertension and instructed to return in 2 weeks.
After 24 sessions at Keystone Rehabilitation Systems, which included ultrasound, cold packs, therapeutic exercises and instruction in a home exercise program, Plaintiff was discharged from PT on February 4, 2010. At the time of discharge, Plaintiff continued to report bilateral foot and heel pain limiting her ability to stand and walk. (R. 269-97).
Plaintiff was seen by Dr. Sieber for a follow-up visit on February 16, 2010. Plaintiff reported that she had been doing well, and that although she had a little foot pain once in a while, it was improved. Plaintiff still had a large bony bump on the posterior aspect of her heel, but the equinus was not as bad at that point. Plaintiff had good ROM in her ankle joint, and she reported no pain when wearing certain shoes. Dr. Sieber recommended heel lifts and backless shoes and instructed Plaintiff to return as needed. (R. 307).
During an office visit with Dr. Spahn on April 8, 2010, Plaintiff reported "[n]othing new." In his assessment, Dr. Spahn described Plaintiff's high cholesterol level as unchanged, her hypertension as well-controlled, and her edema as improved. There is no reference to complaints of foot pain, but Plaintiff's then-current medication list included Voltaren transdermal gel for foot pain. Plaintiff was instructed to return as needed. (R. 247).
Plaintiff returned to Dr. Spahn for a medication check and prescription refills on August 25, 2010. In his assessment, Dr. Spahn described Plaintiff's high cholesterol level as unchanged and her hypertension as well-controlled. In connection with Plaintiff's high cholesterol level, Dr. Spahn ordered lab tests and discussed the benefits of exercise with Plaintiff "at length." There are no references to foot pain in the office notes of this visit; however, her then-current medications included Voltaren transdermal gel for foot pain. Plaintiff was instructed to return as needed. (R.245).
During Plaintiff's next office visit with Dr. Spahn, which took place on October 18, 2010, Plaintiff complained of swelling in both legs with pain and discoloration, fatigue and shortness of breath.
An echocardiogram on October 20, 2010, revealed (a) mild concentric left ventricular hypertrophy, (b) normal overall left ventricular systolic function, (c) trace mitral regurgitation, and (d) mild pulmonic regurgitation. Chest x-rays taken the same day were described as normal. (R. 252, 255). The next day, Plaintiff reported less swelling and shortness of breath, and the echocardiogram taken that day was normal. (R. 254).
A report of blood tests dated October 29, 2010 indicates Plaintiff's iron level was low. She was instructed to take an over-the-counter iron supplement and to follow-up with Dr. Spahn in a month. (R. 256).
Plaintiff's follow-up appointment with Dr. Spahn was scheduled for December 9, 2010. Plaintiff reported feeling a little "peppier" since she started taking the iron supplement for anemia. Dr. Spahn's assessment was improved anemia. There is no reference to complaints of foot pain in the office notes of this visit; however, Plaintiff's then-current medication list included Voltaren transdermal gel for foot pain. Plaintiff was instructed to return as needed. (R. 312).
On December 10, 2010, Dr. Spahn completed a Medical Questionnaire concerning
In order to establish a disability under the Social Security Act, a claimant must demonstrate an inability to engage in any substantial gainful activity due to a 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. See 42 U.S.C. § 423(d)(1). A claimant is considered unable to engage in any substantial gainful activity only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See 42 U.S.C. § 423(d)(2)(A).
When presented with a claim for disability benefits, an ALJ must follow a sequential evaluation process. See 20 C.F.R. § 404.1520(a)(4). The process was described by the Supreme Court in Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), as follows:
493 U.S. at 525-26, 110 S.Ct. 885.
The claimant bears the burden of establishing steps one through four of the sequential evaluation process for making disability determinations. At step five, the
With respect to the ALJ's application of the five-step sequential evaluation process in the present case, steps one and two were resolved in Plaintiff's favor: that is, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of disability, and the medical evidence established that Plaintiff suffers from the following severe impairments: bilateral Haglund's deformity, bilateral equinus, hallux rigidus, bilateral ankle osteoarthritis, hypertension and obesity. (R. 12).
Turning to step three, the ALJ found that Plaintiff's impairments were not sufficiently severe to meet or equal the requirements of any impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1, and, in particular, the listings in Section 1.00 relating to the Musculoskeletal System, Section 4.00 relating to the Cardiovascular System, and Section 7.00 relating to Hematological Disorders. (R. 13-14).
Before proceeding to step four, the ALJ assessed Plaintiff's RFC, concluding that Plaintiff retained the RFC to perform light work that does not require (a) more than 2 hours of standing and walking cumulatively: (b) more than 6 hours of sitting; (c) climbing ladders, ropes and scaffolding; (d) more than occasional balancing; (e) frequent handling and fingering; and (f) exposure to heights and moving machinery.
Finally, at step five, considering Plaintiff's age, education, work experience, RFC and the VE's testimony, the ALJ found that Plaintiff could perform other work existing in the national economy, including the jobs of an assembler, an alarm monitor and a ticket checker. (R. 17-18, 41).
The Court's review of the Commissioner's decision is limited to determining whether the decision is supported by-substantial evidence, which has been described as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). It consists of something more than a mere scintilla, but something less than a preponderance. Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.1979). Even if the Court would have decided the case differently, it must accord deference to the Commissioner and
RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A "regular and continuing basis" means 8 hours a day/5 days a week or an equivalent work schedule. See Social Security Ruling 96-8p.
There are three RFC assessments in the administrative record in this case. The first RFC assessment was completed by a non-medical State agency disability examiner on December 22, 2009. (R. 50-56). This RFC assessment, which indicates that Plaintiff's exertional limitations limit her to light work but does not specifically address her ability to work on a "regular and continuing basis," properly was not considered by the ALJ in rendering his decision. See Shedden v. Astrue, Civ. No. 4:10-CV-2515, 2012 WL 760632, at *10-11 (M.D.Pa. Mar. 7, 2012) ("This court has repeatedly found [assessments] from non-medical disability adjudicators insufficient evidence of a claimant's residual functional capacity.").
The other RFC assessments in this case were completed by Plaintiff's long-time treating physicians. As noted in the summary of the medical evidence, Dr. Spahn, Plaintiff's PCP, rendered the opinion on December 10, 2010 that Plaintiff retained the abilities to lift, stand/walk and sit required for light work, but that she could not perform such work on a "regular and continuing basis" due to severe pain requiring frequent breaks, and she would miss an average of 3 days a month because "her pain and swelling will progress daily as she continues to stand/walk." (R. 303-05). Similarly, Dr. Sieber, the foot specialist who treats Plaintiff for Haglund's deformity and other foot problems, rendered the opinion on August 6, 2010 that Plaintiff retained the abilities to lift, stand/walk and sit required for sedentary work, but that she could not work on a "regular and continuing basis" and would miss an average of 4 days a month because "Haglund's deformity causes ... pain in lege especially in shoe gear," and the "pain often worsened with ambulation."
Because the record lacks an assessment by a physician supporting the ALJ's conclusion that she retains the RFC to perform work on a sustained basis, Plaintiff asserts the ALJ erred in rejecting the opinions of Drs. Spahn and Sieber which dictated a finding of disability based on the Social Security Administration's definition of RFC and the VE's testimony during the hearing before the ALJ regarding the absenteeism tolerance of employers. In response, the Commissioner cites the recent decision of the Court of Appeals for the Third Circuit in Chandler v. Comm'r of Soc. Sec., 667 F.3d 356 (3d Cir.2012), for the proposition that an ALJ is not required to rely on a medical opinion in formulating a claimant's RFC, and the Commissioner seeks judgment in his favor as a matter of law.
After consideration, the Court rejects the Commissioner's argument. In so doing, the Court agrees with the following discussion of this argument by the district court in Gunder v. Astrue, Civ. No. 4:11-CV-00300, 2012 WL 511936, at *15 (M.D.Pa. Feb. 15, 2012):
See also Shedden, supra (ALJ cannot speculate as to a claimant's RFC but must have medical evidence, and generally a medical opinion regarding the functional capabilities of the claimant, supporting his determination; because there was no assessment regarding the claimant's exertional abilities from a treating or evaluating physician and the bare medical records were insufficient for the ALJ to make such a determination, it was incumbent upon the ALJ to obtain such an assessment).
Because the only assessments of Plaintiff's RFC that could be considered by the ALJ in this case supported Plaintiff's claim for disability insurance benefits, the Court agrees with Plaintiff that the ALJ erred in rejecting such assessments. The Court also agrees with Plaintiff that the ALJ's stated reasons for rejecting the treating physicians' opinions in this case were improper. With respect to the ALJ's claims that the opinions were "inherently inconsistent" with the treating physicians' office notes and "disproportionately" relied on Plaintiff's subjective complaints, the Court can find no support for these claims. Plaintiff's foot problems were readily ascertainable by physical examination and confirmed by x-rays, as noted by both physicians in their respective medical source statements. Moreover, the Court agrees with Plaintiff that any notations by Drs. Spahn and Sieber regarding improvement in Plaintiff's foot pain must be considered in context. The physicians' RFC assessments are predictions of the limitations Plaintiff would experience in competitive employment. In the absence of such sustained activity, improvement with treatment is not unexpected.
Finally, as to the ALJ's claim that the absence of documented emergency room visits for foot pain, surgical intervention and referral to a pain specialist undermine the opinions of Drs. Spahn and Sieber regarding Plaintiff's RFC, the Court knows of no authority requiring such evidence before a claimant can be found disabled.
Based on the foregoing, this civil action will be remanded to the Commissioner to reconsider the reasons offered for discounting the opinions of Drs. Spahn and Sieber regarding Plaintiff's ability to engage in sustained work activity and to obtain an assessment of Plaintiff's RFC by a consultative examiner.
Plaintiff also indicated in the Function Report that (1) she tries to walk "some" on a daily basis, but she must take breaks and walk slow due to foot pain; (2) she prepares meals on a daily basis, but it takes much longer than it used to as a result of her need for breaks to elevate her feet; (3) she can still perform indoor and outdoor household chores, but it takes 2 to 3 times longer than it used to due to foot pain; (4) she goes outside on a daily basis and drives a car; (5) she shops once or twice a week for 1 to 2 hours with breaks to rest her legs and feet; and (6) she socializes with friends and family 3 to 4 times a week and goes to church, but she must sit more in social settings rather than participate in activities due to her foot pain. (R. 145-49).
