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).
