HALL v. ASTRUE
Filing
19
ORDER THAT DEFENDANT'S OBJECTIONS ARE OVERRULED AND THE REPORT AND RECOMMENDATION IS APPROVED. THE ABOVE-CAPTIONED MATTER IS REMANDED FOR FURTHER ADMINISTRATIVE PROCEEDINGS, AND THE CLERK OF COURT SHALL MARK THIS MATTER CLOSED. SIGNED BY HONORABLE C. DARNELL JONES, II ON 1/31/2014. 1/31/2014 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STACY LEE HALL
Plaintiff ,
v.
:
:
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
CIVIL ACTION
NO. 11-3323
:
ORDER
AND NOW, this 31st day of January, 2014, upon consideration of Defendant’s Objections to the
Report and Recommendation issued in this case (Doc. No. 17) and Plaintiff’s Response thereto (Doc.
No. 18), it is hereby ORDERED as follows:
(1)
Defendant’s Objections are OVERRULED and the Report and Recommendation
(Doc. No. 16) is APPROVED; 1
1
In September 2008 and March 2009, Plaintiff sustained physical injuries in two separate car accidents.
(Admin. R. 143-44.) On December 17, 2008, Plaintiff filed an application for Disability Insurance Benefits
(DIB), alleging her disability began on September 20, 2008. (Admin. R. 58). Specifically, Plaintiff alleged her
disability was due to a spine injury, which caused pain and memory loss, and affected her ability to move, lift
objects, and to concentrate. (Admin. R. 13, 58, 113.) Plaintiff’s claim was initially denied on June 4, 2009,
prompting her to file a written request for a hearing on July 10, 2009. (Admin. R. 66.) This hearing was held on
March 10, 2010 before Administrative Law Judge Jennifer M. Lash and during same, both Plaintiff and a
vocational expert testified. (Admin. R. 9.)
Judge Lash denied Plaintiff’s DIB application on April 24, 2010. (Admin. R. 40-56.) Although it was
determined that Plaintiff had two severe impairments (disorders of the back and obesity), Judge Lash held that
these impairments did not constitute any of the listed Appendix 1 impairments in Subpart P of 20 CFR §404, that
when met, require an automatic finding of disability. (Admin. R. 45, 47.) Judge Lash further assessed whether
these two severe impairments prevented Plaintiff from having the residual functional capacity to perform her
previous work, which was sedentary. 20 CFR §404.1545. Such a finding required the judge to evaluate
symptoms that were substantiated by objective medical evidence and to weigh the credibility of any statements
that were not substantiated by objective medical evidence. In doing so, Judge Lash found that the medical
evidence of record contradicted Plaintiff’s perception of what she was capable of doing, as well as the opinions
of her consulting and treating physicians, thus the judge afforded less weight to Plaintiff’s statements about the
limiting effects of her symptoms. (Admin. R. 49-51.) At the conclusion of her assessment, Judge Lash
determined that Plaintiff had the residual functional capacity to perform sedentary work. (Admin. R. 51-52.)
Plaintiff sought review of this decision and the same was denied by the Social Security Administration’s
Appeals Council, prompting Plaintiff to file the instant civil action. (Admin. R. 1.) The matter was referred to
United States Magistrate Judge Arnold C. Rapoport for a Report and Recommendation and upon review, Judge
Rapoport concluded that the Administrative Law Judge’s decision should be vacated and the case remanded for
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further analysis. In particular, Judge Rapoport determined that the finding of non-disability was not supported
by substantial evidence and did not accord treating source opinions their due weight. Defendant has filed
Objections to the Report and Recommendation, claiming: “(1) the Magistrate Judge erred in finding that a
treating physician’s opinion must be given controlling weight; (2) the magistrate erred in finding that the ALJ
improperly disregarded treating source opinions; and (3) the magistrate judge erred in finding that the ALJ
reached a “partial negative credibility determination” based upon improper rejection of treating source opinions.”
(Doc. No. 17 at 1)(citations omitted).
Objections to a Report and Recommendation are entitled to de novo review. 28 U.S.C. § 636(b)(1)(C).
However, the review of a final decision of the Commissioner of Social Security is deferential, and is limited to
determining whether the Commissioner’s decision is supported by substantial evidence. 42 U.S.C. §§ 405(g),
1383(c)(3); Jenkins v. Comm’r of Soc. Sec., 192 F. App’x 113, 114 (3d Cir. 2006). In determining the existence
of substantial evidence to support an ALJ’s decision, this Court must consider all evidence of record, regardless
of whether the ALJ cited to it in her decision. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). Substantial
evidence is difficult to precisely define; it “‘does not mean a large or considerable amount of evidence, but rather
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hartranft v.
Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552 (1988)). In terms of the
traditional burden of proof standards, substantial evidence is “more than a mere scintilla but may be somewhat
less than a preponderance of the evidence.” Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.1971).
At issue here is Judge Lash’s decision regarding Plaintiff’s residual functional capacity. When assessing an
applicant’s residual functional capacity, “[t]he ALJ must consider all relevant evidence.” Fargnoli v. Massanari,
247 F.3d 34, 41 (3d Cir. 2001). When rendering a decision, the ALJ must provide more than conclusions, for “an
explanation from the ALJ of the reason why probative evidence has been rejected is required so that a reviewing
court can determine whether the reasons for rejection were improper.” Cotter v. Harris, 642 F.2d 700, 706-07
(3d Cir. 1981). In that same vein, although decisions that include findings of fact supported by substantial
evidence are conclusive, said decisions “must comport with proper procedure and apply proper legal standards.”
Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984).
Residual functional capacity is the applicant’s “impairment(s), and any related symptom . . . that affect
what [the applicant] can do in a work setting.” 20 CFR §404.1545. Using the residual functional capacity
assessment, if the ALJ finds the applicant cannot perform “past relevant work,” then there will be a finding of
disability. The ALJ’s residual functional capacity assessment is of critical importance to the disability
determination process. A dispute arises here regarding whether the evidence elicited from Plaintiff’s treating
sources was accorded adequate weight and if substantial evidence of record supports Judge Lash’s decision to
reject these treating sources in her finding of no disability. Judge Rapoport has recommended that this case be
remanded because ALJ Lash’s rejection of Hall’s treating source opinions was not supported by substantial
evidence and not in keeping with agency regulations. Similarly, Judge Rapoport determined that ALJ Lash’s
residual functional capacity determination was not supported by substantial evidence because ALJ Lash did not
analyze the effects of medication and other treatments in determining Hall’s residual functional capacity. Upon
review of this matter in toto, this Court finds that the ALJ’s decision is not supported by substantial evidence and
her analysis was incomplete.
With specific regard to the objections raised by Defendant, this Court notes that the objection pertaining
to Judge Rapoport’s allegedly “improper finding that a treating physician’s opinion must be given controlling
weight” is somewhat disingenuous and constitutes a misrepresentation of the record. (Doc. No. 17 at 1-2.)
Although Judge Rapoport’s Report and Recommendation did contain the language cited by Defendant, a
contextual reading of same makes it abundantly clear that a treating physician’s opinion may be rejected
“outright . . . on the basis of contradictory medical evidence.” (Doc. No. 16 at 12.) Judge Rapoport then goes
on to thoroughly and correctly set forth the applicable standards to be employed by an ALJ when assessing such
evidence. Therefore, this objection by Defendant is unfounded and for the reasons which follow, Defendant’s
remaining objections shall be similarly overruled.
A treating source is the applicant’s own “physician, psychologist, or other acceptable medical source”
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who has provided the applicant with medical treatment or an evaluation. 20 CFR §404.1502. A treating source’s
opinion is generally given more weight than that of other medical experts’ of record because they have treated the
applicant longer, and so are likely to provide a “detailed, longitudinal picture of [the applicant’s] medical
impairment(s).” 20 CFR §404.1527(c)(1)-(2). However, said opinion must be “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and [not be] inconsistent with the other substantial
evidence in your case record.” Id. When a determination is made that a treating source’s opinion should not be
given controlling weight, its influence must be calculated by considering multiple factors. These factors include
the length and frequency of the treatment relationship, the nature and extent of the treatment relationship, the
evidence in the record that supports the opinion, the consistency of the opinion with the record as a whole, the
specialty of the treating source, and other relevant factors that support or detract from the opinion. Id. The ALJ
must provide “good reasons” for the weight s/he accords the applicant’s treating source’s opinion. 20 CFR
§404.1527(c)(2).
The two “treating sources” proffered by Plaintiff were Neurologist Bruce Grossinger and Chiropractor
Raymond Wisdo. (Admin. R. 14.) A “treating source” must be an “acceptable medical source,” which, as
defined in the regulations, includes a licensed physician. 20 CFR §404.1502; 20 CFR §404.1513. Chiropractors
are not “acceptable medical sources,” as they are specifically included in a different category of evidentiary
sources called “other sources.” 20 CFR §404.1513; Hartranft v. Apfel, 181 F.3d 358, 361 (3d Cir. 1999) (holding
that a chiropractor’s opinion is not an “acceptable medical source,” and is thus not entitled to controlling weight
as a treating source for the purposes of Supplemental Security Income). Therefore, Dr. Raymond Wisdo’s
opinion cannot be assessed as that of an acceptable medical source, but is still relevant for purposes of
determining the severity of Plaintiff’s impairments and their effect on her ability to work. 20 CFR §404.1513.
An ALJ cannot “make speculative inferences from medical reports” or substitute “her own expertise
against that of a physician who presents competent medical evidence.” Plummer v. Apfel, 186 F.3d 422, 429 (3d
Cir. 1999). Instead, the ALJ must consider all evidence of record, and provide a reason for rejecting evidence. Id.
Contradictory medical evidence is required in order to reject a treating source’s opinion. Id. In deciding between
contradictory evidence, the “ALJ may choose whom to credit but ‘cannot reject evidence for no reason or for the
wrong reason.’” Id. (citing Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)).
On December 26, 2008, Dr. Grossinger found that Plaintiff should only work four hours a day, five days
a week. (Admin. R. 379.) Dr. Grossinger also limited Plaintiff’s lifting capacity to under 5 pounds, limited the
time she could remain in a seated position to between 1 and 2 hours, and requested she avoid carrying, twisting,
or movement of her hands. Id. Judge Lash gave little weight to this opinion because she found Dr. Grossinger’s
findings to be inconsistent with those of the physical examinations of record. (Admin. R. 51). Instead, she relied
upon the summary findings of state agency physician Vrajlal Popat, who reviewed “medical and non-medical
evidence in the claims folder” several weeks prior to Plaintiff’s surgery and made findings that were not
consistent with the majority of other well-documented medical evidence of record from both before and after the
surgery. (Admin. R. 171-178.) Accordingly, this Court concludes that the contradictory information of record,
coupled with the explanations provided by Judge Lash regarding the reason(s) she rejected probative evidence,
were not sufficient to reasonably warrant rejection of Plaintiff’s treating source opinion as “controlling.”
Moreover, this Court agrees with Judge Rapport’s assessment that Judge Lash’s decision lacked
substantial evidence because it failed to analyze all relevant factors affecting Plaintiff’s residual functional
capacity; in particular, the effect of drugs and other treatments on her ability to work. When reaching a residual
functional capacity decision, an ALJ must consider the “type, dosage, effectiveness, and side effects” of the
claimant’s medications and the other treatments she received to treat her symptoms. 20 CFR
§404.1529(c)(3)(iv)-(v). A failure to consider these side effects when relevant evidence is contained within the
record constitutes a basis for remand. Fargnoli, 247 F.3d at 42 (finding remand was required when the ALJ
failed “to consider and evaluate the medical evidence in the record consistent with his responsibilities under the
regulations and case law.”). Plaintiff’s medications and their side effects are listed in Field Office Disability
Report. (Admin. R. 120.) As Judge Rapoport correctly found, neither ALJ Lash nor the state agency medical
examiner analyzed the effects of Plaintiff’s medications and post-surgery treatment on her ability to work.
Page 3 of 4
(2)
The above-captioned matter is REMANDED for further administrative
proceedings; and
(3)
The Clerk of Court shall mark this matter CLOSED. 2
BY THE COURT:
/s/ C. Darnell Jones, II
J.
(Admin. R. 43-52; 171-78.) In his objections to Judge Rapoport’s Recommendation, Defendant responded that
“Dr. Popat [the state agency medical examiner] factored any medication related side effects into the residual
functional capacity assessment (Tr. 172-74).” (Doc. No. 17 at 19). However, the record cited by Defendant is
comprised of check boxes which address different kinds of limitations – none of which include the effects of
medication. Moreover, Dr. Popat did not state that he was considering the effects of medication on Plaintiff when
he was evaluating her limitations. Therefore, this Court finds it unreasonable to assume Dr. Popat considered
these side effects when he never made mention of them and did not state that his limitation analysis would
consider them.
In view of the foregoing, the ALJ’s apparent failure to consider all available evidence regarding
Plaintiff’s residual functional capacity requires the non-disability determination to be vacated and reconsidered.
2
This Court notes that the Order attached to Judge Rapoport’s Report and Recommendation (Doc. No. 16-1)
does not pertain to this case.
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