Filing 16


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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, 1 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 1 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 2 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 3 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. 5 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 4 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. 7 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 8 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: 9 (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. 10

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