Phipps v. Colvin

Filing 11

ORDER granting 7 Motion for Summary Judgment, based on the ALJs failure to consider the opinion of Dr. Sparato. The remainder of plaintiffs Motion for Summary Judgment is denied; denying 9 Motion for Summary Judgment. The decision of the Commissioner is vacated, and this action is remanded for a new hearing. Signed by District Judge Max O. Cogburn, Jr on 1/6/2014. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:13-cv-00315-MOC
TANNA R. PHIPPS,

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Plaintiff,
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Vs.
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CAROLYN W. COLVIN, Acting Commissioner of )
Social Security,
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Defendant.
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ORDER

THIS MATTER is before the court upon plaintiff’s Motion for Summary Judgment and
the Commissioner’s Motion for Summary Judgment.
Among other contentions, plaintiff contends that the ALJ failed to consider the report of
Dr. Joseph D. Spataro. M.D., who on June 22, 2004, conducted a consultative evaluation of
plaintiff on behalf of the state agency. Plaintiff contends that in failing to consider such opinion,
the ALJ committed reversible error under 20 C.F.R. § 404.1527(c), which mandates that the
Commissioner consider every medical source opinion by promising claimants that the
administration “will evaluate every medical opinion we receive.” Id. On its responsive brief, the
Commissioner concedes that the ALJ failed to consider Dr. Spataro’s opinion, but argues that
such error was harmless as there is no evidence that his 2004 opinion provided any linkage to
plaintiff’s conditions below her date last insured (December 31, 1998) and the impairments
plaintiff suffered from prior to her date last insured, citing Johnson v. Barnhart, 434 F.3d 650 (4th
Cir. 2005).

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The court has closely read Dr. Spataro’s June 22, 2004, opinion as well as the decision of
the Court of Appeals for the Fourth Circuit in Johnson. In Johnson, the ALJ did not fully credit
the opinion of plaintiff’s treating physician as there was no linkage between the observations of
plaintiff’s conditions and the plaintiff’s date last insured. Id. at 655. While Dr. Spataro observed
that plaintiff was oriented in three spheres, Administrative Record (“AR”) at 372, he observed, in
relevant part, in his objective findings that:
This is a very pleasant lady with multiple pain syndromes, including
trigeminal neuralgia and lumbar radiculopathy with a history of lymphedema as a
sequelae to her radical mastectomy in 1988 with an underlying depression that has
lasted over the last 15 years and somewhat controlled with Effexor-XR.
AR at 372-373 (emphasis added). While it is very possible that the ALJ will determine that there
is no linkage between Dr. Sparato’s 2004 consultative opinion and plaintiff’s condition on her
date last insured, the court cannot agree that such opinion is facially irrelevant to plaintiff’s
condition as to her date last insured. This lack of consideration makes it difficult for this court to
conduct its review of the final decision of the Commissioner. As other courts have found,
The applicability and relevance of the Commissioner's explanation aside,
the fact that it is the Commissioner's explanation rather than the ALJ's is
determinative. The role of the court is to evaluate the ALJ's decision “based solely
on the reasons stated in the decision.” Robinson v. Barnhart, 366 F.3d 1078, 1084
(10th Cir.2004) (citation omitted). In the absence of a reviewable explanation by
the ALJ of the weight given to State agency medical consultant Woodcock's
opinions, remand is required.
Whitmer v. Astrue, 2011 WL 4401678,*3 (W.D.Okla. August 15, 2011). Here, the ALJ’s failure
to evaluate Dr. Sparato’s opinion in any manner not only violates the Commissioner’s duty under
20 C.F.R. § 404.1527(c), such failure also violates the duty to explain why the ALJ did not give
such opinion any weight and, in this case, any consideration at all. In Hatcher v. Secretary, 898
F.2d 21, 23 (4th Cir. 1989), the Court of Appeals for the Fourth Circuit held that it is
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well settled that: “the ALJ is required to make credibility determinations--and
therefore sometimes make negative determinations-- about allegations of pain or
other nonexertional disabilities. . . . But such decisions should refer specifically
to the evidence informing the ALJ’s conclusion. This duty of explanation is
always an important aspect of the administrative charge, . . . and it is especially
crucial in evaluating pain, in part because the judgment is often a difficult one,
and in part because the ALJ is somewhat constricted in choosing a decisional
process.”
Id. (quoting Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985) (citations omitted)).
Here, Dr. Sparato’s opinion could be read to bear on plaintiff’s subjective complaints
before her date last insured. Generally, failure by the Commissioner to consider an entire line of
evidence falls well below the minimal level of articulation required by the Social Security Act.
Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995). However, an ALJ is not tasked with the
“impossible burden of mentioning every piece of evidence” that may be placed into the
Administrative Record. Parks v. Sullivan, 766 F.Supp. 627, 635 (N.D.Ill. 1991). Unlike many
primary care providers or even medical specialists that a claimant may typically visit, state
agency physicians, such as Dr. Sparato, are experts in the evaluation of the medical issues in
disability claims under the Social Security Act, and the ALJ must consider such expert opinions
insofar as they are supported by evidence in the case record. 20 C.F.R. § 404.1527(f) (2007);
SSR 96-6P. On remand, the ALJ should consider Dr. Sparato’s opinion and, if he chooses not to
rely on them, should provide specific, legitimate reasons for disregarding them.
The undersigned has carefully reviewed the decision of the ALJ, the transcript of
proceedings, plaintiff’s motion and brief, the Commissioner’s responsive pleading, and
plaintiff’s assignments of error. As the Commissioner has conceded that the ALJ failed to
consider Dr. Sparato’s opinion and the court has found such to be reversible error, the court does

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not reach plaintiff’s other assignments of error and will deny such without prejudice as to
reasserting such contentions if this matter again comes before this court.
In remanding this action, the court notes that this is the second remand of this action (see
Phipps v. Strue, 3:11cv117 (W.D.N.C.)) and that plaintiff’s claim is one of the oldest this court
has ever considered, spanning nearly three decades when the date of alleged onset is considered.
Respective counsel are encouraged to consider amicable resolution of this matter upon remand.
ORDER
IT IS, THEREFORE, ORDERED that
(1)

the plaintiff’s Motion for Summary Judgment (#7) is GRANTED based on the
ALJ’s failure to consider the opinion of Dr. Sparato, and the remainder of
plaintiff’s Motion for Summary Judgment (#7) and the Commissioner’s Motion
for Summary Judgment (#9) are DENIED without prejudice;

(2)

the decision of the Commissioner, denying the relief sought by plaintiff, is
VACATED and this action is REMANDED to the Commissioner to conduct a
new hearing and consider Dr. Sparato’s opinion and, if he chooses not to rely on
that opinion, the ALJ should provide specific, legitimate reasons for disregarding
such opinion, all pursuant to Sentence Four of 42 U.S.C. § 405(g); and

(3)

this action is DISMISSED.

The Clerk of Court shall enter a Judgment pursuant to Rule 58 of the Federal Rules of
Civil Procedure consistent with this Memorandum of Decision and Order.
Signed: January 6, 2014

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