Tuesday, July 21, 2015

disability - step 2 - severity

O’Keefe v. Colvin – ED Pa. -  July 20, 2015



 The Court will sustain O’Keefe’s objection that the Administrative Law Judge erred in holding his mental impairment did not meet the standard of severity in step two of the five-step sequential evaluation process used to determine if an individual is disabled.   Accordingly, O’Keefe’s request for review will be granted, and this case will be remanded to the Commissioner for further review consistent with this Memorandum.


The ALJ found at step two of the analysis that O’Keefe’s obesity was a severe impairment and that his hypertension and fatty liver disease, when combined, were also severe impairments. The ALJ also concluded, however, that O’Keefe’s affective disorder was best described as depression, NOS (not otherwise specified), and was nonsevere.


O’Keefe asserts that impairment severity is a “de minimis” inquiry and an impairment must be found severe if it imposes anything more than a minimal effect on claimant’s ability to work. He argues the ALJ failed to properly assess and weigh the material health evidence, and the ALJ did not properly analyze the expected duration of O’Keefe’s mental impairments despite evidence that his medical condition steadily declined after he entered a formal mental health center. The Court agrees and finds the ALJ did not use the appropriate standard when finding O’Keefe’s mental impairment was not severe.


“The burden placed on an applicant at step two is not an exacting one,” and “an applicant need only demonstrate something beyond ‘a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work.’” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (citing Soc. Sec. Admin. Program Policy Statement, SSR 85-28, 1985 WL 56856, at *3 (1985)); see also Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (“If the evidence presented by the claimant presents more than a ‘slight abnormality,’ the step-two requirement of ‘severe’ is met, and the sequential evaluation process should continue.”). Further, “[a]ny doubt as to whether this showing has been made is to be resolved in favor of the applicant.” McCrea, 370 F.3d at 360 (citing Newell, 347 F.3d at 546-47).


In making his decision as to disability, the ALJ does not have discretion to reject a medical expert’s opinion simply because he disagrees with the physician’s interpretation of the claimant’s medical evidence, and he cannot “supplant[] the opinions of [the claimant’s] treating and examining physicians with his personal observation and speculation.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). The ALJ must give the opinions of a claimant’s treating physician “substantial and at times even controlling weight.” See Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 202 (3d Cir. 2008) (citation omitted). If rejecting a treating physician’s opinion outright, he may only do so “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 (citations and internal quotation marks omitted). In other words, the ALJ may not substitute his lay opinion for the medical opinion of a treating physician, especially in cases involving mental disabilities. See Id. at 319; Rivera v. Astrue, 9 F. Supp. 3d 495, 502 (E.D. Pa. 2014).


If an ALJ believes that the submitted reports are conclusory or unclear, it is “incumbent upon the ALJ to secure additional evidence from another physician.” Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985); see also Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986) (“[A]n ALJ is not free to set his own expertise against that of a physician who presents competent evidence.”). According to SSA policies, the ALJ “must obtain an updated medical opinion from a medical expert” when additional medical evidence is received that “may change the State Agency’s medical or psychological consultant’s findings.” SSR 96-6p, 1996 WL 374180, at *3-4 (July 2, 1996); Morales, 225 F.3d at 319-20; accord 20 C.F.R. § 416.912(e) (stating that an ALJ may ask claimant to attend a consultative exam if evidence from claimant’s own medical sources are insufficient or nonexistent); 20 C.F.R. § 404.1517 (explaining if a claimant’s medical sources cannot or will not provide sufficient medical evidence about claimant’s impairment, an ALJ may ask the claimant to have one or more physical or mental examinations).