Foley v. Barnhart (432 F. Supp. 2d 465, 2005)

MEMORANDUM AND ORDER

CONAB OY, District Judge.

Here we .consider Magistrate Judge Ma-lachy E. Mannion’s Report and Recommendation in which he recommends we deny Plaintiffs appeal of Defendant’s denial of her application for Disability Insurance Benefits (“DIB”). (Doc. 13.) Plaintiff has filed objections to the Report and Recommendation, (Doc. 14), and Defendant responded to Plaintiffs objections, (Doc. 15). Therefore, this matter is ripe for disposition.

Because Plaintiff filed objections, we will make a de novo determination regarding the matters to which Plaintiff has objected. See 28 U.S.C. § 636(b)(1)(C). After a thorough examination of the record, we conclude that this matter must be remanded to the Commissioner for further consideration.

I. Background

On March 29, 2004, Plaintiff filed her appeal of the Commissioner’s final decision denying her DIB under Title VII of the Social Security Act (“Act”), 42 U.S.C. §§ 401-433. (Doc. 1.) She filed her application for DIB on September 30, 1999, alleging that she had become disabled on September 3, 1998, due to irritable bowel syndrome, Lyme disease, fibrositis, panic attacks and fatigue.

This is the second time the denial of Plaintiffs application has been before the Court. On June 8, 2001, she filed Civil Action No. 1:CV-01-1027, appealing the Commissioner’s denial of benefits. In that action the Magistrate Judge recommended Plaintiffs appeal be denied, but the Honorable Sylvia H. Rambo decided that the case should be remanded to the Commissioner for further consideration. Foley v. Barnhart, Civ. No. 1:CV-01-1027, slip op. (M.D.Pa. Apr. 24, 2002). The basis of the remand was the Court’s conclusion that the Administrative Law Judge (“ALJ”) did not identify the specific listing or combination thereof which she had considered in arriving at her determination that Plaintiff was not disabled. Id. at 3.

Upon remand, the Appeals Council directed that the ALJ hold a supplemental hearing. (R. at 448-49.) The hearing was held on October 21, 2002. (R. at 385.) Testimony was heard from Plaintiff and from Calvin Anderson, a vocational expert. (Id.) At the hearing, Plaintiff was represented by the attorney who represents her in the current appeal. (Id.)

The ALJ issued a supplemental decision on January 27, 2003. (R. at 366-378.) She considered Plaintiffs fibromyalgia, thoracic outlet syndrome and depression severe. (R. at 371.) However, the ALJ found that Plaintiff was not disabled because she could perform a significant number of jobs in the national economy. (R. at 376.)

Following the ALJ’s unfavorable decision on January 27, 2003, Plaintiff requested review of the hearing decision on February 10, 2003. (R. at 361.) In correspondence date stamped January 27, 2004, the Appeals Council considered the reasons Plaintiff disagreed with the ALJ’s decision and found no reason to assume jurisdiction. (R. at 348-49.) Therefore, the ALJ’s supplemental decision became the final decision of the Commissioner.

Plaintiff filed her appeal in this Court on March 29, 2004. (Doc. 1.) The matter was referred to Magistrate Judge Mannion who issued his Report and Recommendation on March 11, 2005, in which he recommends the Court deny Plaintiffs appeal. (Doc. 13.) Plaintiff filed objections on March 22, 2005, (Doc. 14), and Defendant responded to Plaintiffs objections on April 5, 2005, (Doc. 15).

Plaintiff objects to the Magistrate Judge’s Report and Recommendation on three grounds. First, Plaintiff objects on the basis that the Magistrate Judge found that the ALJ properly evaluated the opinions of her treating physician and the consulting psychiatrist. (Doc. 14 at 2-7.) Second, the Magistrate Judge did not properly consider whether the ALJ’s hypothetical to the vocational expert adequately stated Plaintiffs limitations. (Id. at 7-9.) Third, the Magistrate Judge found that the ALJ did not err in not obtaining an updated medical opinion at Step Three of the disability evaluation process. (Id. 14 at 9-12.)

II. Disability Determination

The Commissioner is required to use a five-step analysis to determine whether a claimant is disabled. It is necessary for the Commissioner to ascertain: 1) whether the applicant is engaged in a substantial activity; 2) whether the applicant is severely impaired; 3) whether the impairment matches or is equal to the requirements of one of the listed impairments, whereby he qualifies for benefits without further inquiry; 4) whether the claimant can perform his past work; 5) whether the claimant’s impairment together with his age, education, and past work experiences preclude him from doing any other sort of work. 20 C.F.R. § 416.920(a)-(f); see Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 888-89, 107 L.Ed.2d 967 (1990).

The disability determination involves shifting burdens of proof. The initial burden rests with the claimant to demonstrate that he or she is unable to engage in his or her past relevant work. If the claimant satisfies this burden, then the Commissioner must show 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).

In this case, the ALJ found “[t]he medical evidence indicates that the claimant has fibromyalgia, thoracic outlet syndrome (managed with medication) and depression, impairments that are severe within the meaning of the Regulations but not severe enough to medically equal one of the impairments listed.” (R. at 371.) In keeping with Judge Rambo’s remand Order, the ALJ specifically cited the sections reviewed and the reasons Plaintiff did not meet the requirements of those sections. (Id.)

Regarding Plaintiffs thoracic outlet syndrome, the ALJ looked at Section 1.04 (disorders of the spine) and concluded that the medical record does not contain the required findings. (Id.)

The ALJ looked at the neurological listings (sections 11.01 et seq.) and concluded that Plaintiff did not meet any of the severity requirements. In addition, the ALJ found that Plaintiff did not have “objective ‘inflammatory’ findings that correspond to her allegations of joint pain (Exhibit B-20F) and her ANA tests have been negative (Exhibit B-19F).” (R. at 371.)

Regarding Plaintiffs affective disorder, the ALJ looked at section 12.04 and found

the claimant has no marked limitation of function and only moderate difficulty with concentration, persistence and pace. She has no limitations in activities of daily living or difficulty with social functioning based on her mental impairments. She has had no episodes of de-compensation; nor does the record demonstrate that she is unable to function outside her home without an accompanying support system. Her condition has been stable and she refuses to have any counseling, as repeatedly recommended by her treating physician. Thus, I find that the claimant’s impairments do not meet or equal Listing 12.04.

(R. at 371.)

The ALJ also noted that Plaintiff alleges she has chronic fatigue syndrome but the condition has not been established as a severe impairment. “With regard to such a condition, the record does not contain any thing [sic] other that the claimant’s assertion that she suffers from the condition. Uncorroborated symptoms alone do not establish an impairment, 20 CFR 404.1520.” (Id.)

Concluding that no single impairment or combination of impairments were severe enough to equal listing severity, the ALJ went on to consider Plaintiffs residual functional capacity. (R. at 372.) Incorporating by reference the earlier medical record and hearing testimony from the initial hearing, the ALJ reviewed this evidence as well as that more recently submitted. The more recent medical evidence included the post January 2001-2002 reports of Dr. Alfred Becker, Plaintiffs treating rheumatologist, and a report from Dr. A. Patel, a psychiatrist who performed a consultative examination of Plaintiff in November 2002. (Id. at 373.) Regarding the more recent (2002) evidence, the ALJ stated the following:

In October of 2002, Dr. Becker reported that he sees the claimant on average only every six months (Exhibit B-20F, Page 7). He stated that the claimant " reports chronic fatigue and non-specific muscoloskeletal symptoms of muscle and joint pain compatible with fibromyalgia, but “without objective inflammatory findings” (Exhibit B-20F, Page 7). He opined that she was incapable of even low stress jobs. I do not accord this opinion substantial weight as it is not supported by the medical evidence of record, and his opinion that the claimant is incapable of even low stress jobs appears to be based solely upon her statements. Dr. Becker has recommended counseling to the claimant and she has consistently refused his recommendation, as noted in May of 2001 (Exhibit B-20F, page 6). At the October 2002 visit Dr. Becker noted that the claimant had no new medical or social changes since her last visit, with a similar notation in November of 2001 (Exhibit B-20F, page 5). He again recommended counseling to the claimant and she again refused. The claimant had numerous subjective complaints of burning in her hands and feet, but no objective inflammatory evidence was discernable (Exhibit B-20F, page 5). In June of 2002, Dr. Becker stated that the claimant was not doing well “subjectively” (Exhibit B-20F, page 1). He again recommended counseling for depression and she again refused (Exhibit B-20F, page 1). There were no new medical or social changes at this time.

Most recently, in November of 2002, the claimant attended a consultative examination with Dr. A. Patel (Exhibit B-24F). Dr. Patel diagnosed a depressive disorder (NOS) and noted no psychotic thought process, hallucinations, suicidal ideations or homicidal ideations (Exhibit B-24F, page 3). He found the claimant to be future oriented with a good memory with no major memory problems. She had fair insight and fair judgment. Dr. Patel observed that the claimant’s affect was appropriate and her speech was clear, coherent, well-balanced and without looseness of association. She was alert, well-oriented to time, place and person, and appropriately dressed (Exhibit B-24F, page 2).

Dr. Patel opined that the claimant had good to fair abilities to make occupational adjustments, except for an inability to deal with work stresses (Exhibit B-24F, page 4). He also opined that she had fair to good abilities to maintain personal-social adjustments (Exhibit B-24F, page 5). Dr. Patel’s assessment regarding the claimant’s supposed inability to deal with work stresses (Exhibit B-24F, page 4), is not supported by his own evaluation notes and observances.

(R. at 373.)

The ALJ then reviewed Plaintiffs hearing testimony, including her allegation that her condition had worsened since the last hearing. (R. at 374.) (The original hearing was held on January 3, 2001. (R. at 34.)) The ALJ found that Plaintiffs testimony could not “be deemed credible or consistent with the record as a whole; at least to the extent that total disability is alleged.” (R. at 374.) 1 ' .

There is little recent evidence of treatment in the record since the earlier decision of February of 2001. The consultative examination discussion does not match with the ratings or assessments given regarding the ability to deal with work stresses in particular, and I cannot accord those portions of the examination significant weight. The assessment by the claimant’s treating physician at Exhibit B-20F is not supported by any independent findings and observations. He recommends treatment for the claimant’s depression; ■ however, the claimant’s refusal to consider such an option belies the severity of the depression that she alleges. She has pain medications but does not take them as directed. I do not see any physical findings or test results in the record that can be used to establish listing severity, as described above, no matter; what Listing is evaluated: orthopedic, neurological or mental.

The claimant is able to perform activities of daily living and to maintain social functioning without any limitations. Although she alleges difficulty with concentration, persistence and pace, she has never relayed- any limitations in this area to her physicians. Nothing in this record supports a conclusion that the claimant could not sustain unskilled work activities involving one to two step tasks on a regular and continuing basis. She has had no episodes of decompensation. The claimant’s treating physicians appear to accept her statements that no treatments work for her, but objective support in the medical record is sorely lacking. The claimant is able to drive, perform personal care activities, go grocery shopping on her own, and perform housework at her own pace and most other activities of daily living. She at least has the ability to concentrate on television programs. Thus, I find that the claimant’s impairments do not preclude her from all work activities.

Based on the above, I find that the claimant retains the residual functional capacity to lift and carry 10 pounds occasionally and five pounds frequently. She can sit for six out of eight hours and stand and walk no more than two out of eight hours. She is able to perform tasks that require low to moderate concentration skills or one to two step jobs. She has the residual functional capacity for a range of sedentary work.

In making these determinations, I have considered the opinions of the Disability Determination Service (DDS) -consultants, in accordance with the So- ■ cial Security Ruling 96-6p. The DDS consultants opined that the claimant has the residual functional capacity for work at the medium exertional level (Exhibit 5F and 7F). DDS also opined that the claimant has no severe mental impairment (Exhibit 6F and 8F). The complete record that is before me cannot completely support these assessments, but the assessments while outdated so suggest that the claimant is capable of some range of work.

(R. at 374-75.)

The ALJ then looked at whether Plaintiff could perform her past relevant work as a bookkeeper and cashier: work that is considered unskilled to skilled and at the sedentary to light exertional level. (R. at 375.) The ALJ determined that Plaintiff could not perform her past relevant work because she deemed her to be limited to work at the unskilled sedentary exertional level. (Id.)

Finally, the ALJ found that Plaintiffs ability to perform “all or substantially all of the requirements of sedentary work is impeded by additional exertional and/or non-exertional limitations.” (R. at 370.) Therefore, the ALJ used a vocational expert to help determine whether there are a significant number of jobs in the national economy Plaintiff could perform given her residual functional capacity and other vocational factors. (Id.)

Based on the testimony of the vocational expert, the ALJ concluded that Plaintiff was not disabled because she had the residual functional capacity for work that exists in significant numbers in the national economy. (Id.)

III. Discussion

A. STANDARD OF REVIEW

This Court’s review of the Commissioner’s final decision is limited to determining whether there is substantial evidence to support the Commissioner’s decision. 42 U.S.C. § 405(g); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999). A reviewing court is “bound by the ALJ’s findings of fact if they are supported by substantial evidence in the record.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999). Substantial evidence means “more than a mere scintilla. It means 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); Plummer, 186 F.3d at 427 (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.1995)). Therefore, we will not set aside the Commissioner’s final decision if it is supported by substantial evidence, even if we would have reached different factual conclusions. Hartranft, 181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.1986); 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ... ”).

B. PLAINTIFF’S OBJECTIONS

As noted above, Plaintiff objects to the Magistrate Judge’s Report and Recommendation on three grounds: 1) the Magistrate Judge found that the ALJ properly evaluated the opinions of her treating physician and the consulting psychiatrist, (Doc. 14 at 2-7); 2) the Magistrate Judge did not properly consider whether the ALJ’s hypothetical to the vocational expert adequately stated Plaintiffs limitations, (id. at 7-9); and 3) the Magistrate Judge found that the ALJ did not err in not obtaining an updated medical opinion, (id. 14 at 9-12).

1. EVALUATION OF THE MEDICAL EVIDENCE

Plaintiff argues that the ALJ did not properly evaluate the medical evidence, specifically her rejection of the opinions of Plaintiffs treating physician, Dr. Becker, and consulting psychiatrist, Dr. Patel. (Doc. 14 at 2.) Plaintiff maintains that the Magistrate Judge should not have accepted the ALJ’s analysis of the medical evidence and her finding regarding Plaintiffs residual functional capacity (“RFC”), particularly in light of the fact the Magistrate Judge recognized the ALJ’s reasoning was flawed. (Id.) The flawed reasoning “stems from the ALJ rejecting Dr. Becker’s opinion that Ms. Foley could not tolerate work stress by speculating the opinion appeared to be based “solely upon [Ms. Foley’s] statements” (R. 373), while later rejecting the extent of Ms. Foley’s concentration, persistence, and pace limitations as not credible because she had not reported them to Dr. Becker (R. 374). Ms. Foley testified she had never voiced those complaints to Dr. Becker (R. 414).” (Doc. 14 n. 1.)

In support of her position, Plaintiff contends her treating physician’s opinion is entitled to greater weight than accorded by the ALJ and, given the ALJ’s confusion about the basis of Dr. Becker’s opinion, she had the obligation to “‘make every reasonable effort to recontact the source for clarification of the reasons of the opinion.’ ” (Doc. 14 at 4 (quoting Social Security Ruling 96-5p).) Plaintiff asserts the need to recontact Dr. Becker is also appropriate because the nature of her primary impairment, fibromyalgia, means that objective findings will not exist for her diagnosis. (Id. at 4-5.)

Similarly, Plaintiff maintains that the ALJ had the duty to recontact Dr. Patel— the ALJ could not have known what the terms on Dr. Patel’s assessment meant because they were not defined therein. (Doe. 14 at 5-6.) Plaintiff quotes 20 C.F.R. § 404.1519p(b) in support of her position: “if a report by a consultative examiner such as Dr. Patel ‘is inadequate or incomplete, [the ALJ] will contact the medical source who performed the consultative examination, give an explanation of [the] evidentiary needs, and ask that the medical source furnish the missing information or prepare a revised report.’ ” (R. at 6 (emphasis added by Plaintiff).)

Finally Plaintiff argues that the strongest evidence in her case is not her own subjective complaints as the Magistrate Judge found. (Doc. 14 at 6 (citing Doc. 13 at 17).) Rather, she maintains that Dr. Becker’s and Dr. Patel’s reports are the strongest evidence — opinions which were not controverted by any physician to which the ALJ accorded greater weight. (Id.)

Defendant argues that Plaintiffs reliance on Dr. Becker’s opinion is misplaced for several reasons. (Doc. 15 at 2.) First, more than a diagnosis of a condition is required to show disability — “an impairment must be accompanied by functional limitations severe enough to preclude all substantial gainful activity.” (Id. (citations omitted).) Second, as required by 20 C.F.R. § 404.1527(d)(2), “Dr. Becker’s con-elusory opinion was not well supported by medically acceptable clinical and laboratory diagnostic techniques, and was inconsistent with other substantial evidence, including his own clinical notes.” (Doc. 15 at 2.) Third, Dr. Becker reported that Plaintiff complained only of occasional panic attacks or depression and that Plaintiff reported that her depression was improved. (Id. at 3.) Fourth, Dr. Becker’s opinion was inconsistent with other physicians’ opinions, including that of Dr. Gupta, a neurologist and psychologist, who reported that many of Plaintiffs objective complaints of pain were psychogenic. (Id.) Fifth, the ALJ was not confused by the terms used in Dr. Patel’s assessment. (Id. at 4.)

Finally, Defendant cites the following bases upon which Dr. Becker’s opinion was inconsistent with other evidence of record: 1) Plaintiff alleged disability as of September 3, 1998, but sought little treatment until March 1999; 2) Plaintiff took no pain medication and did not participate in a chronic pain program; and 3) Plaintiff engaged in daily activities such as driving, child care, cooking, housework, reading, playing computer games, using a computer, watching television, walking without an assistive device, doing Yoga exercises, shopping, taking care of her daily personal needs and attending events. (Doc. 15 at 6 (citations to the record omitted).)

We conclude that the ALJ did not properly consider the evidence of record in determining Plaintiffs RFC and, for this reason, we cannot say that the ALJ’s decision is based on substantial evidence. First and foremost, the ALJ did not properly consider Dr. Becker’s opinion. Second, we cannot tell whether the ALJ properly evaluated Dr. Patel’s assessment. Third, the ALJ did not properly evaluate Plaintiffs subjective complaints of pain.

a. Treating Physician’s Opinion

The ALJ’s opinion is not based on substantial evidence because she did not properly evaluate the treating physician’s opinion.

The “treating physician rule,” is codified at 20 C.F.R. 404.1527(d)(2), and is widely accepted in the Third Circuit. Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see also Dorf v. Bowen, 794 F.2d 896 (3d Cir.1986). The regulation addresses the weight to be given a treating physician’s opinion: “If we find that a treating source’s opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case, we will give it controlling weight.” 20 C.F.R. § 416.927(d)(2). “A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians’ reports great weight, especially when their opinions reflect expert judgment based on continuing observation of the patient’s condition over a prolonged period of time.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.2000) (citations omitted). In choosing to reject the treating physician’s assessment, an ALJ may not make “speculative inferences from medical reports and may reject a treating physician’s opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.” Morales, 225 F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir.1988)). When confronted with contradictory medical evidence, the ALJ may choose whom to credit, but in these instances there is an acute need for the ALJ to explain the reasoning behind conclusions. Fargnoli v. Massa-nari, 247 F.3d 34, 42 (3d Cir.2001). The Fargnoli court noted that the appeals court will vacate or remand a case where such an explanation is not present. Id.

Furthermore, “[t]he Commissioner is encouraged to give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.” Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.1998) (citing Metz v. Shalala, 49 F.3d 374, 377 (8th Cir.1995)). “The opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence.” Id.

“[A]bsent reliable medical evidence from a treating or examining physician controverting the claimant’s treating specialist, an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician’s views under criteria set forth in 20 C.F.R. § 404,1527(d)(2).” Newton v. Apfel, 209 F.3d 448, 453 (5th Cir.2000).

The Newton court also concluded

if the ALJ determines that the treating physician’s records are inconclusive or otherwise inadequate to receive controlling weight, absent other medical opinion evidence based on personal examination or treatment of the claimant, the ALJ must seek clarification or additional evidence from the treating physician in accordance with 20 C.F.R. § 404.1512(e).

Id.

Here the ALJ discounted Dr. Becker’s assessment of Plaintiffs condition (including the finding that she could not tolerate even low stress jobs) because it is “not supported by any independent findings and observations.” (R. at 374.) The problem with looking for independent findings and observations is that fibromyalgia is a disease which is notable for its lack of objective diagnostic techniques.

Fibromyalgia, previously called fibrosi-tis, is “a rheumative disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments and other tissue.” Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir.2004). It is a chronic condition, causing “long-term but variable levels of muscle and joint pain, stiffness and fatigue.” Brosnahan v. Barnhart, 336 F.3d 671, 672 n. 1 (8th Cir.2003). The disease is “poorly-understood within much of the medical community [and] is diagnosed entirely on the basis of patients’ reports and other symptoms.” Benecke, 379 F.3d at 590. “In the past, many believed fibromyalgia was just a psychological aberration because it has no visible signs and could not be confirmed in laboratory tests.” Earl J. Brewer, M.D., & Kathy Cochran Angel, The Arthritis Sourcebook (1998),