Dereck M. B. v. Berryhill

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court on Plaintiff's motion to reverse the Commissioner's decision, in which he argues that the Administrative Law Judge (“ALJ”) erred in failing to find that Plaintiff meets the impairment listings for 12.02, 12.04 and/or 12.06 and in finding that Plaintiff retained the residual functional capacity (“RFC”)^[1] to engage in substantial gainful activity. Defendant Nancy A. Berryhill (“Defendant”) has filed a motion for an order affirming the Commissioner's decision.

         The matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the record, and having considered a second round of briefing regarding the sit/stand option, I find that the ALJ's findings are sufficiently supported by substantial evidence and that her potential error in rejecting the treating orthopedist's opinion that Plaintiff is limited to jobs that permit him to sit or stand at will has been waived and, in any event, is harmless. Accordingly, I recommend that Plaintiff's Motion to Reverse the Defendant's Final Decision without a Remand for Rehearing or in the Alternative Reverse with a Remand for Rehearing (ECF No. 18) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 20) be GRANTED.

         I. Background

         Plaintiff Dereck M. B. suffered a terrible workplace accident in October 2011 when a truck on a lift under which he was working fell and crushed him. The resulting “crush injury” caused rib fractures, lumbar and thoracic spinal fractures and bilateral iliac fractures, which were initially treated during a week-long hospitalization following which Plaintiff continued outpatient treatment and physical therapy.

         Because the incident entitled Plaintiff to worker's compensation, his file reflects both treatment and evaluation associated with that claim. As pertinent here, Plaintiff underwent an independent medical examination performed by orthopedist Dr. Steven Blazar who opined on December 13, 2012, that Plaintiff was partially disabled for worker's compensation purposes in that he could perform modified light duty work, with “alternating sitting and standing to his comfort level.” Tr. 569-72. Also pertinent are Plaintiff's encounters with the treating orthopedist, Dr. Randall Updegrove, in 2012 and 2013; Dr. Updegrove opined that Plaintiff was capable of light work that would “allow him to sit and stand as tolerated.” Tr. 364. In addition to physical treatment, Plaintiff also saw a neuropsychologist, Dr. Francis Sparadeo, once in 2012 and once in 2013. Tr. 347, 365. Based on an extensive clinical evaluation, Dr. Sparadeo ruled out cognitive impairment, but diagnosed depression and post-traumatic stress disorder; he advised that Plaintiff's goal should be “gradual return to work.” Tr. 347, 353, 365. Dr. Sparadeo suggested medication for Plaintiff's mental health impairments, but Plaintiff refused. Tr. 366.

         On October 23, 2012, Plaintiff applied for Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”). The Social Security Administration (“SSA”) expert physicians examined the file, considered Dr. Updegrove's treating opinion together with the balance of the treating record as of the date of the review, and found Plaintiff capable of light work. Tr. 112-13, 126-27. Two SSA expert psychologists also examined the file and found that depression and anxiety were both severe at Step Two, but that Plaintiff could perform work involving simple to moderately detailed instructions with only occasional direct dealing with the general public. Tr. 110, 113-15, 124-25, 128-29.

         From a physical perspective, the non-examining sources (the SSA expert physicians), the examining source (Dr. Blazar), and the treating source (Dr. Updegrove) are all consistent - that Plaintiff is capable of light work, with limitations. There is no opinion evidence from any treating or examining source establishing a more restrictive physical RFC. Although he did not provide an RFC opinion, the testimony (presented at the first hearing) of the medical expert, Dr. Stephen Kaplan, is not inconsistent in that he opined based on a file review that Plaintiff's accident did not result in “a lot of displacement” and that such soft tissue damage as he experienced “should . . . be resolved.” Tr. 96. The Commissioner correctly points out that Plaintiff's counsel did not ask Dr. Kaplan any questions, including that he asked no questions to develop the record regarding the potential for a limitation based on the need for a sit/stand option.

         From a mental health perspective, beyond the two evaluative appointments with Dr. Sparadeo, the medical record reflects very little mental health treatment for Plaintiff's diagnosed impairments of depression and PTSD. Nevertheless, shortly before the first hearing, Plaintiff submitted a “Psychiatric Review Technique” (“PRT”) and an RFC opinion from a non- acceptable medical source, licensed mental health clinician, Sallie D'Agostino Pisaturo. Tr. 454, 468. As a treating source, Ms. Pisaturo appears only once in the medical record as the author of a “Psychological Report” dated October 4, 2013; she did not submit any treating records. Tr. 449-50. In this report, she asserts that she had been seeing Plaintiff for “weekly psychotherapy sessions” for approximately two months. Contrary to Dr. Sparadeo, who performed clinical testing and found no cognitive impairments, Ms. Pisaturo's letter and opinions conclude that the accident has “significantly interfered with his cognitive ability . . . [and h]is memory and organizational ability appear to be significantly hampered.” Tr. 449; see Tr. 455 (checking boxes for organic mental disorders). Ms. Pisaturo's submissions in support of Plaintiff's application also include her conclusion that he has had at least three episodes of “decompensation . . . of extended duration” and that his symptoms are so severe that he meets the Listing criteria for 12.02 (organic mental disorders), 12.04 (affective disorders), and 12.06 (anxiety-related disorders). Tr. 454, 464. No. episodes of decompensation appear in the medical record.

         Plaintiff testified at the first hearing on February 26, 2014, along with Dr. Kaplan, the medical expert, and a vocational expert (“VE”). During the hearing, the first ALJ asked the VE for jobs at the light and sedentary levels and also asked how that job base would be eroded if the job was “set up so that an individual can sit and stand while performing” it; the first VE responded with specific jobs, and opined that the sedentary unskilled jobs identified would be eroded by a specified percentage for the sit/stand option. Tr. 98-100. In his decision, the first ALJ rejected the Pisaturo opinion because it came from a non-acceptable source whose box-check opinions lacked the support of any objective findings. Tr. 143. Relying on Dr. Kaplan and the SSA non-examining sources, he found that Plaintiff retained the RFC to perform light work, with postural limitations and the mental capacity only for simple tasks with occasional social interaction. Tr. 140. However, Dr. Updegrove's opinion was not evaluated (nor was the Blazar opinion) and, without explanation, no sit/stand option was included in the RFC. Id.

         On June 19, 2015, the Appeals Council vacated the first ALJ's decision and remanded the matter because the first ALJ improperly relied on Dr. Kaplan's testimony yet Dr. Kaplan did not testify about RFC limitations; because the first ALJ omitted Plaintiff's mental limitations from the hypothetical propounded to the VE; and because the first ALJ did not evaluate either the Updegrove opinion or the Blazar opinion. Tr. 151-55. Indeed, although Dr. Blazar's opinion was mentioned in the record, a copy of it was not in the file as of the date of the first ALJ's decision.

         On remand, a new ALJ was assigned to the case, the Blazar opinion was procured, and a second hearing was convened. Plaintiff and a second VE testified. This time the ALJ included mental health limitations as reflected in the opinions of the SSA expert psychologists in the hypothetical propounded to the VE. Tr. 67-69. In response, the VE testified to the availability of essentially the same unskilled jobs at the light and sedentary exertional levels as were identified by the first VE, with a reduction in numbers because of the mental health limitations. Compare Tr. 98-100, with Tr. 67-69. However, the second ALJ did not add to the hypothetical the sit/stand option on which the first ALJ had asked the first VE to opine.

         In her decision, the ALJ discussed at length the opinions of Drs. Blazar and Updegrove, as directed by the Appeals Council. Tr. 16-17, 20. She found Plaintiff capable of light work with additional limitations, such as the ability to lift only ten pounds, to perform only simple tasks and to have only occasional contact with the public. Tr. 16. She afforded significant weight to the Updegrove/Blazar opinions, except for the sit/stand option. Tr. 22-23. As to that, she afforded minimal weight to the limitation that Plaintiff should work at a job where he is able to sit/stand to his comfort level because “it is not specifically defined and does not set forth the maximum the claimant can do as required by a residual functional capacity assessment.” Tr. 23. The second ALJ also afforded little weight to the Pisaturo opinions because they are conclusory and there are no treating notes to support them, as well as because of their inconsistency with the record as a whole. Id. Ultimately, the ALJ found Plaintiff able to perform three unskilled sedentary positions (assembler, hand packager and production inspector) that exist in sufficient numbers in the national economy; therefore, she held that he was not disabled at any relevant period. Tr. 24-25.

         By the time of the second hearing, Plaintiff had stopped seeing Dr. Sparadeo and was being seen only by an internist, Dr. Charlene Ellsworth, who prescribed Vicodin and Adderall. Tr. 49-51. Plaintiff told Dr. Ellsworth he was doing volunteer work and complained of anxiety and lack of focus and determination, for which she prescribed Adderall and Wellbutrin as a trial, but her mental status examination was entirely normal. Tr. 558-60.

         II. Procedural History

         Plaintiff's original motion principally challenged the ALJ's rejection of the Pisaturo finding that Plaintiff met or equaled three mental health listings. He also argued that the ALJ's RFC finding did not rely on Plaintiff's testimony about the severity of his symptoms, as confirmed by Plaintiff's continuing receipt of worker's compensation benefits; that the ALJ did not take into account the first VE's testimony; that the ALJ did not comply with the Appeals Council remand order; and that the ALJ's RFC strains credulity because the ALJ found Plaintiff capable of light work but unable to perform prior work as a short-order cook, a job that requires the ability to function at the light exertional level. The Court's analysis of these arguments in the context of the record resulted in the tentative conclusion, now solidified into a recommendation, that none is well founded for the reasons discussed infra. However, in a phone conference with the parties, the Court raised an additional issue based on a sua sponte concern regarding the viability of the ALJ's “good reason” for rejecting the Updegrove treating opinion, confirmed by the Blazar examining opinion, that Plaintiff's ability to work is limited by his need for a sit/stand option “to his comfort level.”

         The Court's concern may be briefly summarized. Both the treating source, Dr. Updegrove, and the examining source, Dr. Blazar, opined that Plaintiff was limited to light work that allowed him to sit or stand at will. Such an option is addressed in SSR 96-9p, 1996 WL 374185 (July 2, 1996), which provides that an individual may need to “alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically, ” eroding the range of available unskilled sedentary work, with the extent of the erosion depending on facts in the record with respect to the frequency of the need to alternate sitting and standing and the length of time needed to stand. Id. at *7. The first ALJ asked the first VE about an at-will sit/stand option as applied to the facts in the record of this case, and the first VE found the framing of the limitation sufficiently specific to be able to testify to specific erosion percentages. Tr. 99-100. This testimony raises a serious question regarding the viability of the second ALJ's only reason for rejecting the Updegrove/Blazar sit/stand option opinion - that the limitation lacked specific definition to inform the RFC decision. And assuming that this reason for rejecting this aspect of the Updegrove/Blazar ...