Friedberg v. Saul

• Decision Date: 20 February 2020
• Docket Number: CIVIL ACTION NO. 18-1703
• Citation: 439 F.Supp.3d 402
• Parties: Lori FRIEDBERG, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

439 F.Supp.3d 402

Lori FRIEDBERG, Plaintiff,

v.Andrew SAUL, Commissioner of Social Security,¹ Defendant.

CIVIL ACTION NO. 18-1703

United States District Court, E.D. Pennsylvania.

Filed February 20, 2020

Robert Savoy, Trevose, PA, for Plaintiff.

Andrew C. Lynch, Katie M. Gaughan, Office of the General Counsel, Philadelphia, PA, for Defendant.

ORDER

CYNTHIA M. RUFE, District Judge.

Plaintiff Lori Friedberg seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner of the Social Security Administration ("the Commissioner"), denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits under Titles II and XVI of the Social Security Act. The Court referred the case to United States Magistrate Carol Sandra Moore Wells, who has issued a Report and Recommendation ("R&R") that Plaintiff's request for review be granted and the case be remanded.

In response to the request for review, the Commissioner conceded that the "ALJ erred (1) by not consolidating the claims into a single electronic record; and (2) in evaluating Plaintiff's subjective complaints and the third party statements from Plaintiff's husband and daughter, and testimony from Plaintiff's boyfriend,"² and contended that remand was the proper remedy.³ Plaintiff contended that the Court should reverse the ALJ's decision and award benefits instead of remanding the case.⁴

The R&R agreed that the ALJ erred but recommended that the Court remand the case rather than order benefits.⁵ The R&R explained that, for a court to award disability benefits, "the administrative record of the case [must be] fully developed and ... substantial evidence on the record as a whole [must] indicate that the claimant is entitled to benefits."⁶ The R&R determined that the administrative record of the case was not fully developed because the parties agreed that the ALJ failed to properly evaluate the favorable lay evidence.⁷ Moreover, the R&R noted that it is "unclear that substantial evidence necessarily supports Plaintiff's disability claim" for two reasons.⁸ First, "on remand, the ALJ may be able to provide legitimate reasons for rejecting any favorable lay evidence that he previously failed to evaluate properly."⁹ Second, Plaintiff relied on the medical source statement provided by her treating psychiatrist for her assertion that substantial evidence indicates that she is entitled to benefits.¹⁰ However, the R&R explained that it is a disputed issue whether the ALJ properly afforded reduced weight to the psychiatrist's opinions and, "were the court to decide this disputed issue ... it is not certain that Plaintiff would prevail."¹¹

Plaintiff objects to the R&R contending that the matter should be reversed for an award of benefits, rather than remanded for further evaluation by the ALJ.¹² "[A]ny decision to award benefits in lieu of ordering a remand for further agency consideration entails the weighing of two factors: First, whether there has been an excessive delay in the litigation of the claim which is not attributable to the claimant; and second, whether the administrative record of the case has been fully developed and substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.¹³ "When faced with such cases, it is unreasonable for a court to give the ALJ another opportunity to consider new evidence concerning the disability because the administrative proceeding would result only in further delay in the receipt of benefits."¹⁴

Plaintiff filed for disability benefits ten years ago. After the first unfavorable decision was issued by the ALJ and the Appeals Council denied review, Plaintiff appealed to the District Court. On April 4, 2013, the Honorable Lawrence F. Stengel remanded the case to the ALJ based on several errors, including the ALJ's failures to properly evaluate Plaintiff's credibility and properly consider Plaintiff's then-husband, David Friedberg's, statement in support.¹⁵ On April 19, 2014, the ALJ issued a new decision denying Plaintiff's claim.¹⁶ In October 2015, the Appeals Council remanded Plaintiff's claim in part because "[t]he April 19, 2014 decision did not weigh the statements of David Friedberg, the claimant's husband ... Zelda Brafman, the claimant's [mother] ... and the testimony of the claimant's boyfriend," Alan Douca.¹⁷ Now, after conceding that the ALJ erred again—and, importantly, erred in evaluating the same testimony that lead to two prior remands—the Commissioner nonetheless requests that the Court require Plaintiff to begin the process anew. However, numerous Third Circuit cases demonstrate that administrative delays of this length—especially when "caused by deficiencies that are not attributable to any error of the claimant"¹⁸ —constitute "excessive delays triggering consideration of an award of benefits in lieu of a remand."¹⁹ Because of errors by the Commissioner, after ten years, five hearings, four ALJ decisions, two Appeals Council remands, and one District Court remand, Plaintiff is still waiting for a correct resolution of her claims. Therefore, this factor militates heavily in favor of awarding Plaintiff benefits.

Moreover, the ALJ determined that Plaintiff has "the following severe impairments: diabetes mellitus, substance addiction disorder, gastroparesis, and anxiety disorder."²⁰ In addition, there is substantial evidence in the record that Plaintiff's impairments "render [her] unable to engage in substantial gainful activity."²¹ Substantial evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"²² This standard is "less than a preponderance of the evidence but more than a mere scintilla."²³

Plaintiff's treating psychiatrist, Dr. Maria Reis, completed a Medical Source Statement in which she indicated that Plaintiff was "precluded" from "[c]omplet[ing] a normal workday and workweek without interruptions from psychologically based symptoms and perform[ing] at a consistent pace without an unreasonable number and length of rest periods."²⁴

There is also substantial evidence demonstrating Plaintiff's disability from lay witnesses, including David Friedberg, Brafman, and Douca. Friedberg stated that Plaintiff "cannot handle stressful situations, is afraid of new things, won't go places by herself, at work will get overwhelmed and [has] problems working with people."²⁵ Douca testified that Plaintiff "can't remain seated for prolonged periods or remain standing for more than five to ten minutes."²⁶ Brafman described Plaintiff as "[o]verly tired," and as someone who struggles with "severe/migraine headaches, [has] trouble walking stairs, falling down, anxiety with separation, depression, [and is] unsure of [her]self."²⁷

In sum, there is substantial evidence of Plaintiff's disability and the ALJ has repeatedly failed to properly evaluate both the lay witness testimony and Plaintiff's own testimony. In 2013, the District Court remanded because of the ALJ's failure to properly consider this testimony. In 2015, the Appeals Council remanded because the ALJ again failed to properly evaluate this testimony. Nevertheless, in 2016, as the Commissioner concedes, the ALJ again improperly evaluated this evidence. Plaintiff has already waited ten years for a proper resolution of her claims. The Court will not provide the ALJ a fourth opportunity to get it right.²⁸ Considering the extensive delay, and the substantial evidence indicating that Plaintiff is disabled, an award of benefits is the appropriate relief under these circumstances.

AND NOW , this 19th day of February 2020, upon consideration of Plaintiff's Complaint against the Commissioner of the Social Security Administration [Doc. No. 3], the Answer to the Complaint [Doc. No. 7], Plaintiff's Brief and Statement of Issues in Support of Request for Review [Doc. No. 9], the Commissioner's Response to Request for Review [Doc. No. 20], Plaintiff's Reply to Response [Doc. No. 21], the R&R of United States Magistrate Judge Carol Sandra Moore Wells [Doc. No. 22], Plaintiff's Objections to the R&R [Doc. No. 23], and the Commissioner's Response thereto [Doc. No. 26], and after careful, independent review of the complete administrative record, it is hereby ORDERED that:

1. The Clerk is directed to REMOVE the case from Civil Suspense;

2. Plaintiff's Objections to the R&R [Doc. No. 23] are SUSTAINED in part;

3. The R&R [Doc. No. 22] is ADOPTED in part;

4. The case is REMANDED to the Commissioner for a speedy calculation of benefits to which Plaintiff is entitled from the onset date of January 22, 2009.

It is so ORDERED .

1 Substituted pursuant to Fed. R. Civ. P. 25(d).

2 Doc. No. 20 at 1.

3 See id. at 13.

4 Doc. No. 21 at 2.

5 R&R [Doc. No. 22] at 9.

6 Id. (quoting Brownawell v. Comm'r Of Soc. Sec. , 554 F.3d 352, 358 (3d Cir. 2008) (quoting Podedworny v. Harris , 745 F.2d 210, 221-22 (3d Cir. 1984) )).

7 See id.

8 Id.

9 Id.

10 See id.

11 Id. at 9-10.

12 Doc. No. 23 at 3. Plaintiff also objects on the grounds that the Commissioner waived his right to request remand in this matter. See id. at 1. However, even assuming that the Commissioner could waive this remedy, the record shows that the Commissioner requested remand to the ALJ on at least two occasions. See Defendant's Contested Motion to Remand [Doc. No. 14] at 1-2; Defendant's Response to Request for Review [Doc. No. 20] at 15 ("The Commissioner respectfully submits that the Court should remand the matter for consolidation of the evidence of record into a single electronic record, further evaluation of Plaintiff's subjective complaints, and further evaluation of the testimony and reports from Plaintiff's boyfriend, husband, and daughter.").

13 Diaz v. Berryhill , 388 F. Supp. 3d 382, 391 (M.D. Pa. 2019) (citing Podedworny, 745 F.2d at 221-22 (citations omitted)); see also Cooper v. Berryhill , No. 18-206, 2019 WL 144922, at *1 (M.D. Pa. Jan. 9,2019) ; Wisneski v. Berryhill , No....