LONG v. ASTRUE

Filing 16

MEMORANDUM AND OPINIION ORDER THAT THE REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE LYNNE A. SITARSKI IS APPROVED AND ADOPTED IN PART AND NOT APPROVED AND NOT ADOPTED IN PART. THE COMMISSIONER'S OBJECTIONS ARE OVERRULED; AND THE M ATTER IS REMAND TO JUDGE SITARSKI'S FOR A SUPPLEMENTAL REPORT AND RECOMMENDATION ADDRESSING (a) PLAINTIFF'S REMAINING ASSIGNMENTS OF ERROR, AND (b) WHETHER SUBSTANTIAL EVIDENCE IN A FULLY DEVELOPED RECORD DICTATES A FINDING THAT PLAINTIFF IS DISABLED; ETC.. SIGNED BY HONORABLE LOUIS H. POLLAK ON 12/21/09. 12/23/09 ENTERED AND E-MAILED.(jl, )

U N IT E D STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA

S Y L V IA D. LONG, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, Defendant.

C IV IL ACTION N o . 08-1787

M E M O R A N D U M /O R D E R P la in tif f Sylvia Long appeals for the second time from a final decision of the C o m m is s io n e r of Social Security holding that she is not disabled and therefore not e lig ib le for Supplemental Security Income ("SSI") under Title XVI of the Social Security A c t, 42 U.S.C. § 1381 et seq. On October 28, 2009, United States Magistrate Judge L yn n e A. Sitarski filed a Report and Recommendation ("R&R") recommending that p la in tif f 's request for review be granted, the Commissioner's decision vacated, and the c a se remanded to the Commissioner for an award of benefits. For the reasons which f o llo w , I will approve and adopt Judge Sitarski's R&R in part, and not approve and not a d o p t it in part. T h e relevant procedural history of this case dates to March 24, 2006. On that date,

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a n administrative law judge ("ALJ") denied plaintiff's application for benefits. The A p p e a ls Council thereafter denied plaintiff's request for review. Plaintiff appealed to this c o u rt, and Magistrate Judge Timothy R. Rice issued an R&R recommending that the m a tter be remanded to the Commissioner for further proceedings to correct multiple erro rs by the ALJ. While Judge Rice found that the ALJ's conclusion that plaintiff's p h ysic a l "impairment was not severe was based on substantial evidence in an adequate re c o rd ," R. at 358, he concluded that the ALJ's findings as to Long's psychological im p a irm e n ts could not be upheld for three reasons, see id. at 341-42. First, Judge Rice h e ld that "the ALJ's rejection of [the opinion of Dr. Farrell Lines, plaintiff's treating p s yc h ia tris t] was not supported by substantial evidence" and that Dr. Lines's December 2 0 0 5 "assessment was entitled to controlling weight." Id. at 353. Second, Judge Rice d e te rm in e d that the ALJ improperly "fail[ed] to acknowledge" that Dr. Lines had assessed p la in tif f 's Global Assessment of Functioning ("GAF") rating 1 as 50 ­ a score that " d e n o tes serious impairment in social or occupational functioning" ­ "on three separate o c c as io n s ." Id. at 354. Finally, Judge Rice noted that the ALJ "failed to state any s p e c if ic reasons for discrediting Long" and recommended that such reasons should be p ro v id e d on remand. Id. at 355. In a memorandum dated August 17, 2007, I approved

As Judge Rice explained, a GAF rating "is a subjective determination of the p h ys ic ia n 's judgment (on a 100-point scale) of the claimant's overall ability to function o n that particular day, excluding physical and environmental impairments." R. at 342 n.1 (c itin g Diagnostic and Statistical Manual of Mental Disorders IV-TR, at 34 (4th ed. 2 0 0 0 )). 2

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a n d adopted Judge Rice's R&R. In so doing, I specifically noted my agreement with both (1 ) Judge Rice's "analysis" of the ALJ's treatment of Dr. Lines's testimony, and (2) "the R & R 's conclusion that the ALJ improperly rejected" that testimony. Id. at 362. O n remand, the ALJ again concluded that plaintiff was ineligible for benefits and a g a in declined to afford Dr. Lines's December 2005 testimony controlling weight. See id . at 281-84, 286. Plaintiff again appealed to this court, and I referred the case to Judge S itarsk i. Judge Sitarski's R&R concludes that the ALJ "misinterpreted the remand order" b y failing to give controlling weight to Dr. Lines's testimony and, as a result, that "the A L J 's decision is not supported by substantial evidence." R&R at 14. Further, because " a return to the administrative process would prolong waiting and delay the receipt of b e n e fits ," Judge Sitarski recommends vacating the Commissioner's decision and re m a n d in g this case to the Commissioner for the award of benefits. Id. at 15. T h e Commissioner has timely raised two objections to Judge Sitarski's R&R. First, the Commissioner argues that the ALJ did not, in fact, misinterpret the remand o rd e r. This argument is, in essence, that Judge Rice's R&R did not mean what it said. As th e Commissioner admits, Judge Rice stated that because "Dr. Lines' assessment did not c o n f lic t with other medical evidence," it "was entitled to controlling weight." R. at 353.2

This conclusion appears in Judge Rice's R&R at least three times. See also R . at 353 ("[T]he December 16, 2005 assessment should have been given controlling w e ig h t."); id. at 342 n.2 ("On remand, the ALJ must reconsider Long's impairment as s u p p o rte d by the record, including Dr. Lines' December 16, 2005 assessment.") (em p h asis added). 3

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N e v e rth e les s, the Commissioner argues that Judge Rice "could not have intended this s ta te m e n t to be a narrow directive, upon remand, to give controlling weight to Dr. Lines' a ss e ss m e n t," "because to do so would be the equivalent of making a finding of fact b e yo n d the Court's scope of review." Def.'s Objections, at 4. J u d g e Rice's directive, however, was not a "finding of fact." The standard for d e te rm in in g whether or not a treating doctor's testimony should be given controlling w e ig h t, set out in 20 C.F.R. § 416.927(d)(2),3 is a legal standard. See, e.g., Moss v. A s tr u e , 555 F.3d 556, 561 (7th Cir. 2009); Lancaster v. Comm'r of Soc. Sec., 228 Fed. A p p x . 563, 576 (6th Cir. 2007). Accordingly, the conclusion that a doctor's assessment d o e s or does not meet the applicable standard is a legal conclusion. See, e.g., Walterich v. A s tr u e , 578 F. Supp. 2d 482, 513 n.11 (W.D.N.Y. 2008); Bonet v. Astrue, No. 05-cv2 9 7 0 , 2008 WL 4058705, at *22 (S.D.N.Y. Aug. 22, 2008); Mustain v. Shalala, No. 95c v -3 0 0 1 1 , 1996 WL 131131, at *4 (D. Mass. Mar. 21, 1996). While the question of w h e th e r or not there are inconsistencies between Dr. Lines's analysis and either his trea tm en t notes or other medical evidence is one of fact, Judge Rice determined that there w a s no substantial evidence of such inconsistencies in the record. See R. at 353. This

20 C.F.R. § 416.927(d)(2) provides that "[i]f we find that a treating source's o p in io n on the issue(s) of the nature and severity of your impairment(s) is well-supported b y medically acceptable clinical and laboratory diagnostic techniques and is not in c o n sis ten t with the other substantial evidence in your case record, we will give it c o n tro llin g weight." In this context, "we" means the Social Security Administration, and " yo u r" refers to the applicant for benefits. Id. § 416.902. 4

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f in d in g , in turn, grounded Judge Rice's legal conclusion that Dr. Lines's assessment d e se rv e s controlling weight. M o re o v e r, Judge Rice's conclusion did not exceed the scope of permissible ju d ic ia l review. In support of his objection, the Commissioner cites the general statement in Rutherford v. Barnhart, 399 F.3d 546 (3d Cir. 2005), that "[i]n the process of re v ie w in g the record for substantial evidence, [a court] may not `weigh the evidence or s u b s titu te [its own] conclusions for those of the fact-finder.'" Id. at 552 (quoting Williams v . Sullivan, 970 F.2d 1172, 1182 (3d Cir. 1992)). This directive concerning the limits of a c o u rt's review of the record for substantial evidence, however, has no application to the le g a l conclusions of the ALJ, over which courts exercise plenary review. See, e.g., Kelley v . Comm'r of Soc. Sec., 566 F.3d 347, 349 (3d Cir. 2009). In fact, several courts of a p p e als ­ including the Third Circuit ­ have, in both published and unpublished d ispo sition s, either held that the failure to give controlling weight to a treating doctor's a ss e ss m e n t constituted error or remanded with specific directions to afford controlling w e ig h t to the treating doctor's assessment. See, e.g., Brickhouse v. Astrue, 331 Fed. A p p x . 875, 877 (2d Cir. 2009); Ritchotte v. Astrue, 281 Fed. Appx. 757, 759 (9th Cir. 2 0 0 8 ); Holler v. Barnhart, 102 Fed. Appx. 742, 745 (3d Cir. 2004); Green-Younger v. B a r n h a r t, 335 F.3d 99, 106 (2d Cir. 2003); McCain v. Director, Office of Workers Comp. P r o g r a m s, 58 Fed. Appx. 184, 201 (6th Cir. 2003). Accordingly, the Commissioner's f irs t objection will be overruled.

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T h e Commissioner's second and final objection argues that "substantial evidence s u p p o rts the ALJ's decision that Dr. Lines' December 2005 medical assessment was not e n title d to controlling weight." Def.'s Objections, at 6. In other words, the C o m m iss io n e r asks this court to revisit Judge Rice's holding ­ which I previously a d o p te d ­ that "the ALJ's rejection of Dr. Lines' opinion was not supported by substantial e v id e n c e ." R. at 353. The conclusion that substantial evidence does not support the ALJ's decision is, h o w e v e r, the law of the case. "Law of the case rules have developed to maintain c o n sis te n c y and avoid reconsideration of matters once decided during the course of a s in g le continuing lawsuit." Pub. Interest Res. Group of N.J., Inc. v. Magnesium Elektron, In c ., 123 F.3d 111, 116 (3d Cir. 1997) (quoting Wright, Miller, & Cooper, Federal P r a c tic e and Procedure § 4478, at 788 (1981)). While this appeal is technically docketed a s a separate case from plaintiff's first appeal, the issue presented is identical, and " re m a n d directions" in SSI cases qualify as the law of the case in subsequent proceedings. Key v. Sullivan, 925 F.2d 1056, 1061 (7th Cir. 1991); accord Arroyo v. Astrue, No. 07-cv5 0 2 7 , 2008 WL 4288135, at *2 (E.D. Pa. Sept. 18, 2008) ("Courts applying the law of the c a se doctrine examine the decision of the district court or the report and recommendation b y the magistrate judge, and the scope of the remand order.").4 Since the doctrine

Key and Arroyo hold that ALJs are bound by the law of the case on remand, b u t I find no reason why law of the case principles should not apply on an appeal f o llo w in g remand. 6

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ap p lies, this court is "`loathe to [revisit prior decisions] in the absence of extraordinary c irc u m s ta n c es .'" Pub. Interest Res. Group, 123 F.3d at 116 (quoting Christianson v. Colt In d u s . Operating Corp., 486 U.S. 800, 817 (1988)). Extraordinary circumstances " in c lu d e situations in which: (1) new evidence is available; (2) a supervening new law has b e e n announced; or (3) the earlier decision was clearly erroneous and would create m a n if e st injustice." Pub. Interest Res. Group, 123 F.3d at 116. N o t h in g in the Commissioner's objections suggests that such circumstances exist in this case. Much of the evidence relied on in the Commissioner's objections was a v a ilab le at the time of plaintiff's first appeal and was (a) relied on in the ALJ's first d e c is io n , (b) relied on by the Commissioner's brief on the first appeal, and/or (c) e x p re ss ly considered in Judge Rice's R&R. Almost all of the remaining evidence cited b y the Commissioner consists of more recent instantiations of facts in evidence at the first h e a rin g ­ as, for example, with defendant's invocation of the fact that more recent tre a tm en t notes, as well as Dr. Lines's notes, describe plaintiff as well-dressed. The two e x c ep tio n s ­ the facts that plaintiff timely arrived for her psychiatric sessions and took a v a c a tio n in August 2005 ­ do not demonstrate that Judge Rice's analysis was clearly e rro n e o u s. Nor do these facts constitute new evidence that "differs materially from the e v id e n c e of record," Hamilton v. Levy, 322 F.3d 776, 787 (2003): Both plaintiff's tim e lin e s s , see, e.g., R. at 131-61, and the fact that plaintiff visited relatives in South C a ro lin a , id. at 144, were matters of record at the time of the prior appeal.

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T h e ALJ's second decision does include two facts ­ not relied on by the C o m m is s io n e r ­ that were not available at the time of the first appeal. Specifically, the A L J notes that (1) plaintiff attended both a Christmas party and a birthday party in 2006, a n d (2) plaintiff's new treating psychiatrist recommended that she "find new outlets." Id. a t 285-86. This evidence, however, is also not materially different from the evidence b e f o re Judge Rice, which showed that plaintiff engaged in occasional social activities and h a d been encouraged to volunteer by Dr. Lines. The current record as it pertains to the q u e stio n of whether Dr. Lines's assessment is entitled to controlling weight is, in other w o rd s, "substantially similar" to the record on plaintiff's previous appeal. Hamilton, 322 F .3 d at 787. As a result, the Commissioner's second objection will be overruled as p re c lu d e d by the law of the case. The Commissioner has not objected to Judge Sitarski's recommendation that, in lig h t of the controlling weight to be afforded to Dr. Lines's opinion, a remand for benefits is in order. Judge Sitarski is correct that outright reversal and a remand for a benefit d e ter m in a tio n may be "appropriate when a return to the administrative process would p ro lo n g waiting and delay the receipt of benefits," R&R at 15 ­ especially when, as here, th e process has already consumed five and a half years and included "numerous errors" b y the ALJ. Podedworny v. Harris, 745 F.2d 210, 223 (3d Cir. 1984). Nevertheless, a remand for a benefit determination "should be made only when the a d m in is tra tiv e record of the case has been fully developed and when substantial evidence

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o n the record as a whole indicates that the claimant is disabled and entitled to benefits." Id. at 221-22. The R&R does not consider these issues, and because Dr. Lines's D e c em b e r 2005 assessment does not directly opine that plaintiff is disabled, the question o f whether substantial evidence "indicates that [plaintiff] is disabled" is, in turn, affected b y the validity or invalidity of plaintiffs' remaining arguments in support of her request fo r review, which the R&R held to be "moot." R&R at 14 n.8. Accordingly, this court w ill not adopt the portion of the R&R recommending remand for a determination of b e n e f its , but will instead remand this matter to Judge Sitarski for a supplemental R&R c o n sid e rin g (1) plaintiff's remaining arguments in support of her request for review, and (2 ) whether substantial evidence in a fully developed record dictates a finding that p la in tif f is disabled. ORDER A N D NOW, this 21st day of December, 2009, after consideration of plaintiff's B rief and Statement of Issues in Support of Her Request for Review (docket no. 9), d e f en d a n t's Response (docket no. 10), and plaintiff's Reply (docket no. 11), and after re v ie w of the Report and Recommendation of United States Magistrate Judge Lynne A. S ita r sk i (docket no. 13), and the record in this matter, upon de novo review of those p o rtio n s of the R&R objected to by the Commissioner (docket no. 14) and consideration o f plaintiff's response to defendant's objections (docket no. 15), and for the reasons s ta te d in the foregoing memorandum, it is hereby ORDERED that:

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(1 )

T h e Report and Recommendation of United States Magistrate Judge Lynne A . Sitarski is APPROVED AND ADOPTED IN PART and NOT A P P R O V E D AND NOT ADOPTED IN PART;

(2 ) (3)

T h e Commissioner's objections are OVERRULED; and T h e matter is REMANDED to Judge Sitarski for a Supplemental Report a n d Recommendation addressing (a) plaintiff's remaining assignments of erro r, and (b) whether substantial evidence in a fully developed record d ic ta te s a finding that plaintiff is disabled. B Y THE COURT: /s /L o u is H. Pollak P o lla k , J.

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