Paisley v. Colvin

• Decision Date: 05 August 2015
• Docket Number: CASE NO. 1:14-cv-01656-YK-GBC
• Parties: ROBERT W. PAISLEY, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

ROBERT W. PAISLEY, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

CASE NO. 1:14-cv-01656-YK-GBC

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 5, 2015

(JUDGE KANE)

(MAGISTRATE JUDGE COHN)

REPORT AND RECOMMENDATION TO VACATE THE DECISION OF THE COMMISSIONER AND REMAND FOR FURTHER PROCEEDINGS

Docs. 1, 9, 10, 13, 14

REPORT AND RECOMMENDATION

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying the application of Plaintiff Robert W. Paisley for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act"). Plaintiff asserts disability as a result of depression, anxiety, and pain. Plaintiff submitted an opinion from his therapist, a licensed social worker who had treated Plaintiff for four years. This opinion indicated that Plaintiff would be unable to work due to his impairments. The ALJ did not procure any medical opinion that contradicted Plaintiff's therapist'sopinion, and instead undertook a lay analysis of the medical evidence to assign it little weight. The ALJ's impermissible use of lay inference to reject the only medical opinion in the record precludes meaningful review. As a result, the Court recommends that Plaintiff's appeal be granted, the decision of the Commissioner be vacated, and the matter be remanded for further proceedings.

II. Procedural Background

On June 15, 2011, a previously filed application for benefits under the Act was denied by an ALJ. (Tr. 58-75). On July 29, 2011, Plaintiff filed an application for DIB under the Act. (Tr. 186-94). On October 25, 2011, the Bureau of Disability Determination denied Plaintiff's application (Tr. 76-99), and Plaintiff filed a request for a hearing on December 23, 2011. (Tr. 141-42). On February 27, 2013, an ALJ held a hearing at which Plaintiff—who was represented by an attorney—and a vocational expert ("VE") appeared and testified. (Tr. 34-57). On March 12, 2013, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 16-33). On May 3, 2013, Plaintiff filed a request for review with the Appeals Council (Tr. 13-15), which the Appeals Council denied on June 30, 2014, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-5).

On August 25, 2014, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). OnNovember 24, 2014, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 9, 10). On January 6, 2015, Plaintiff filed a brief in support of his appeal ("Pl. Brief"). (Doc. 13). On February 6, 2015, Defendant filed a brief in response ("Def. Brief"). (Doc. 14). On June 23, 2015, the Court referred this case to the undersigned Magistrate Judge. The matter is now ripe for review.

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is "less than a preponderance" and requires only "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

IV. Sequential Evaluation Process

To receive disability or supplemental security 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); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits show that he has a physical or mental impairment of such a 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed. See 20 C.F.R. § 404.1520. The Commissioner 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 from 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listing"); (4) whether the claimant's impairment prevents theclaimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e).

The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

V. Relevant Facts in the Record

Plaintiff was born on June 4, 1962 and was classified by the regulations as a person closely approaching advanced age through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 37). Plaintiff has twelve years of education and past relevant work as a construction worker, material handler, maintenance mechanic helper, warehouse worker, plumber helper and welder. (Tr. 37, 53). He filed a previous application for disability, which was denied on June 15, 2011, on theground that he could perform sedentary work only. (Tr. 58-75).¹ Because the Court recommends remand based on the ALJ's failure to properly evaluate Plaintiff's mental RFC given the opinion from Plaintiff's therapist, the Court primarily limits its discussion to evidence of Plaintiff's mental impairments.

In July of 2008, Plaintiff lost his job as a welder due to a DUI, but was able to continue working as a plumber. (Tr. 334). However, he was admitted to Chambersburg hospital for depression and suicidal thoughts. (Tr. 334). He indicated that his plan was to hang himself and that he had been hospitalized for depression before. (Tr. 338). Plaintiff was assessed a GAF of 30 to 35. (Tr. 342). Plaintiff reported having "poor sleep secondary to the pain, poor appetite, decreased energy, increased withdrawal, increased depressive cognition." (Tr. 334). Most of Plaintiff's "depressive cognitions were centered around his pain issues." (Tr. 335). Plaintiff was discharged four days later. (Tr. 334).

On January 20, 2009, an MRI of Plaintiff's thoracic spine indicated minimal scoliosis. (Tr. 462).

On February 5, 2009, Plaintiff presented to the emergency room at Chambersburg Hospital. (Tr. 347). Notes indicate that Plaintiff had:

[A] long-term history of chronic depression, multiple Behavioral Health hospitalizations in the past due to major depression andsuicidal ideation as well as a DUI, past smoking history, who presented with worsening shortness of breath associated with coughing, nasal greenish phlegm, and increased back pain secondary to coughing episodes. He was admitted by Dr. Cabello for intractable back pain and with Pain Services consult for further evaluation. In regards to his bronchitis episode where he presented with shortness of breath and coughing, he was treated here with ceftriaxone 1 g IV daily and Zithromax 500 mg po daily followed by 250 mg po daily. In addition, he also received prednisone in view that he had significant amount of wheezing on examination on admission.

Over the hospital course, his symptoms improved remarkably, still appeared very depressed and asked to see psychiatrist for further evaluation. Prior to Psychiatry, I elected to start the patient on Effexor 37.5 mg 1 tablet daily and with Xanax 0.25 mg p.r.n. with which he improved remarkably. In regards to his back pain, he does have a thoracic disk bulge T7-T8 and degenerative disk disease as revealed on thoracic MRI in August 2007 and a lumbosacral MRI at that time revealed bilateral facet degenerative disk disease L4-L5 and L5-S1. He underwent previous epidural injections on July 24, 2008, and January 16, 2009. Labs during the hospitalization were significantly unremarkable.

(Tr. 347). Plaintiff reported being sober for three months. (Tr. 351). In a psychiatric consultation, Plaintiff indicated that he was "about to lose [his] apartment and will be homeless." (Tr. 357). He indicated previous psychiatric admissions in March of 2007 and July of 2008. (Tr. 357). Plaintiff reported attending "some AA...