Stevens v. Berryhill

• Decision Date: 21 March 2019
• Docket Number: CIVIL ACTION NO. 3:17-1724
• Citation: 404 F.Supp.3d 933
• Parties: Tracie L. STEVENS, Plaintiff v. Nancy A. BERRYHILL, Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

404 F.Supp.3d 933

Tracie L. STEVENS, Plaintiff

v.Nancy A. BERRYHILL, Defendant

CIVIL ACTION NO. 3:17-1724

United States District Court, M.D. Pennsylvania.

Signed March 21, 2019

ORDER

MALACHY E. MANNION, United States District Judge

Presently before the court is the report and recommendation of Magistrate Judge Gerald B. Cohn ("Report"), which recommends that the decision of the Commissioner of Social Security ("Commissioner") denying plaintiff, Tracie L. Stevens' ("Stevens") application for Social Security Disability Insurance Benefits ("DIB"), be vacated. (Doc. 15). No objections have been filed to the Report by either party. Upon review of the record in this matter, the Report will be adopted in its entirety, and the decision of the Commissioner will be vacated.

When no objections are made to the report and recommendation of a magistrate judge, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b) ; advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc. , 702 F.Supp.2d 465, 469 (M.D. Pa. 2010) (citing Henderson v. Carlson , 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to every report and recommendation) ). Nevertheless, whether timely objections are made or not, the district court may accept, not accept, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1) ; M.D.Pa. L.R. 72.31.

On February 12, 2016, Stevens was denied DIB by an administrative law judge ("ALJ") under Title II of the Social Security Act. Stevens appeals the decision, however, arguing that the ALJ erred by not finding any of Stevens' impairments or fibromyalgia severe and by assigning little weight to the Department of Veterans Affairs' finding of service-connected disability. (Doc. 10, at 3). In considering Stevens' claims, Judge Cohn determined that the ALJ's evaluation was not supported by substantial evidence.

First, Judge Cohn evaluated Stevens' fibromyalgia and found that "the ALJ conflated the three-month durational requirement of widespread pain with the requirement of having at least 11 tender points." (Doc. 15, at 12). Also, "[c]ontrary to the ALJ's finding that evidence that other disorders were not excluded pursuant to SSR 12-2P ..., Dr. Mian's review of medical records and analysis meets that requirement and rules out disorders explicitly enumerated in the notes of SSR 12-2P and lists several tests." (Doc. 15, at 13). The ALJ's conclusion that fibromyalgia was not a medically determinable impairment also led the ALJ to improperly conclude that Stevens did not have a severe impairment. (Doc. 15, at 14). As such, the ALJ erred in concluding fibromyalgia was not a medically determinable impairment and by determining that Stevens did not have a severe impairment.

Accordingly, Judge Cohn recommends the decision of the Commissioner be vacated and that this case be remanded to the Commissioner to develop the record fully, conduct a new administrative hearing, and appropriately evaluate the evidence.

The court has reviewed the entire Report of Judge Cohn and agrees with the sound reasoning, which led him to his recommendation. As such, the court adopts the Report of Judge Cohn as the opinion of the court.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

(1) The Report of Judge Cohn (Doc. 15) is ADOPTED IN ITS ENTIRETY ;

(2) The Commissioner's decision denying Stevens DIB is VACATED .

(3) This case is REMANDED to the Commissioner to develop the record fully, conduct a new administrative hearing, and appropriately evaluate the evidence in accordance with Judge Cohn's Report.

(4) The Clerk of Court is directed to CLOSE THIS CASE .

REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S APPEAL AND TO REVERSE AND REMAND DECISION OF COMMISSIONER

GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE

This matter is before the undersigned United States Magistrate Judge for decision. Tracie L. Stevens ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to GRANT Plaintiff's appeal and REVERSE and REMAND the Commissioner's decision in this case.

I. Legal Standards of Review

To receive disability or supplemental security benefits under the Social Security Act ("Act"), a claimant bears the burden to 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) ; accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:

shall be determined to be under a disability 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, 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), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920. The process requires an Administrative Law Judge ("ALJ") to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment ;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).

If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford, 399 F.3d at 551. 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. Id.

In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("court shall review only the question of conformity with such regulations and the validity of such regulations"). 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, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Substantial evidence is "less than a preponderance" and "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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ).

The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford, 399 F.3d at 552. The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g) ).

II. Procedural History

On November 12, 2013, Plaintiff filed an application for Disability Insurance Benefits ("DIB") under Title II of the Act, 42 U.S.C. §§ 401 - 433, 1382 - 1383, with a last insured date of December 31, 2007,¹ and an alleged disability onset date of December 31, 2005. (Tr. 50, 122). On February 12, 2016, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 47-67). Plaintiff sought review of the decision, which the Appeals Council denied on June 8, 2017,² thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 11-16).

On September 28, 2017, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On December 19, 2017, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 4, 5). On April 3, 2018, Plaintiff filed a brief in support of the appeal. (Doc. 10 ("Pl. Br.")). On May 1, 2018, Defendant filed a brief in response. (Doc. 11 ("Def. Br.")). On May 31, 2018, Plaintiff filed a reply. (Doc. 14 (Reply)).

III. Issues on Appeal

On appeal, Plaintiff argues the "ALJ erroneously found that none of Plaintiff's impairments were severe, and that her fibromyalgia was not medically determinable or severe," and the "ALJ erroneously assigned little weight to the finding of service-connected disability by the Department of Veterans Affairs without good reasons." (Pl. Br. at 3).

IV. Facts in the Record³

A. Background

Plaintiff was born in September 1966 and thus is classified by the regulations as a younger individual through the date last insured of December 31, 2007. (Tr. 29, 122); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff alleged...