ANDERSON v. COLVIN

Filing 26

ORDER THAT MAGISTRATE JUDGE LLORET'S REVISED REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED IN PART AND REJECTED IN PART, ETC. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 8/6/2015. 8/7/2015 ENTERED AND COPIES E-MAILED.(lbs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PATRICE EILEEN ANDERSON,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of SSA
Defendant
SOCIAL SECURITY ADMINISTRATION
Interested Party

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civil Action
No. 2013-cv–01923

O R D E R
NOW, this 6th day of August, 2015, upon consideration
of the following documents:
(1)

Decision of Administrative Law Judge (“ALJ”)
Suanne S. Strauss dated February 15, 2011
(“ALJ’s Decision”) (Document 7–2);

(2)

Complaint filed April 19, 2013 (Document 3);

(3)

Answer filed June 21, 2013 (Document 8);

(4)

Brief and Statement in Support of
Plaintiff’s Request for Judicial Review,
which brief and statement was filed
September 10, 2013 (Document 11);

(5)

Defendant’s Response to Request for Review
of Plaintiff, which response was filed
November 8, 2013 (Document 14);

(6)

Reply Brief in Support of Plaintiff’s
Request for Judicial Review, which reply
brief was filed November 22, 2013
(Document 15);

(7)

Revised Report and Recommendation of United
States Magistrate Judge Richard A. Lloret
dated August 27, 2014 and filed August 28,
2014 (“R&R”) (Document 22);

(8)

Defendant’s Objections to the Revised Report
and Recommendation, which objections were
filed September 4, 2014 (“Defendant’s
Objections”) (Document 24); and

(9)

Plaintiff’s Response to Defendant’s
Objections to Report and Recommendation,
which response was filed September 12, 2014
(Document 25);

and after a thorough de novo review of the record in this
matter;
IT IS ORDERED that Magistrate Judge Lloret’s Revised
Report and Recommendation is approved and adopted in part and
rejected in part. 1
IT IS FURTHER ORDERED that sections I, IIA, and IIB of
Magistrate Judge Lloret’s Revised Report and Recommendation are
approved and adopted.
IT IS FURTHER ORDERED that section IIC of Magistrate
Judge Lloret’s Revised Report and Recommendation is not adopted.

1
In reviewing a Magistrate Judge’s Report and Recommendation, the
district court must make a de novo determination of those portions of the
report, findings, or recommendations made by the magistrate judge to which
there are objections. 28 U.S.C. § 636(b)(1); Rule 72.1(IV)(b) of the Rules
of Civil Procedure for the United States District Court for the Eastern
District of Pennsylvania. The district court “may accept, reject, or modify,
in whole or in part, the magistrate's findings or recommendations.” United
States v. Raddatz, 447 U.S. 667, 673-674, 100 S.Ct. 2406, 2411,
65 L.Ed.2d 424, 432 (1980) (citing 28 U.S.C. § 636(b)(1)). Reviewing courts
may not “re-weigh the evidence or impose their own factual determinations.”
Chandler v. Commissioner of Social Security, 667 F.3d 356, 359
(3d Cir. 2011).

-2-

IT IS FURTHER ORDERED that defendant’s objections to
Magistrate Judge Lloret’s determination that substantial
evidence does not support the ALJ’s finding that plaintiff’s
onset date of her disability was later than her date last
insured are each overruled. 2
2

In this case, Administrative Law Judge Suanne S. Strauss found
that plaintiff had the “severe impairment” of ulcerative colitis through her
date last insured, which was December 31, 2003. ALJ’s Decision at page 23.
However, the ALJ determined that plaintiff’s ulcerative colitis was not
sufficiently severe through the date last insured to qualify as disabling
within the meaning of the Social Security Act. Id.
United States Magistrate Judge Lloret recommends that this matter
be remanded to the Commissioner of Social Security for reconsideration of the
evidence and retrospective analysis by a qualified medical advisor regarding
plaintiff’s disability onset date to determine whether such date was prior to
December 31, 2003. R&R at page 17.
Defendant argues that Judge Lloret’s R&R does not give sufficient
deference to the ALJ’s inferences regarding the credibility of plaintiff’s
account of her symptoms. Defendant’s Objections at page 1. Specifically,
defendant contends that the ALJ did not discount the statements of
plaintiff’s treating physicians regarding her onset date of ulcerative
colitis. Rather, defendant argues that these statements do not demonstrate
that plaintiff had sufficiently severe colitis to be considered disabling
prior to her date last insured. Defendant’s Objections at page 4, n.1.
Furthermore, defendant argues that the ALJ reasonably inferred
that plaintiff would have sought medical treatment had she been experiencing
disabling symptoms prior to her date last insured. Defendant’s Objections
at page 3. Defendant contends that because of the lack of medical records,
it was reasonable for the ALJ to infer that any such symptoms prior to
plaintiff’s gall bladder surgery were likely caused by plaintiff’s gall
bladder, not by colitis. Defendant’s Objections at page 4, n.1. In
addition, defendant argues that Judge Lloret’s R&R does not give sufficient
deference to the ALJ’s inference that the evidence of plaintiff’s return to
work from February 2005 to March 2005 as a bakery worker and from October
2004 to July 2008 as a cafeteria aide indicated she was able to perform the
full range of light work while undergoing colitis treatment. Work History
Report, dated September 17, 2009, Exhibit 5E (Document 7-6); Defendant’s
Objections at page 4. For the following reasons, I disagree with defendant.
Initially, I conclude that most of what defendant objects to in
Magistrate Judge Lloret’s R&R is nothing more than a restatement of the
issues raised in Defendant’s Response to Request for Review of Plaintiff
(Document 14). While I conclude that Magistrate Judge Lloret has correctly
analyzed the factual and legal issues, I amplify those reasons below.
(Footnote 2 continued):

-3-

(Continuation of footnote 2):
Establishing the onset date of a claimant’s disability is
critical to determining the claimant’s eligibility for disability benefits.
See C.F.R. § 404.1520; SSR 83-20. For disabilities of a non-traumatic
origin, such as a slowly progressing disease, ascertaining the onset date
requires examining the claimant’s allegations, work history, and medical and
other relevant evidence. See SSR 83-20.
When evaluating a claimant’s statements about her symptoms, all
symptoms are considered to the extent they can reasonably be found
“consistent with the objective medical evidence.” See C.F.R. § 404.5129;
C.F.R. § 416.929; SSR 96-7P. Once it is established that a medical
impairment exists which could reasonably cause the symptoms, the adjudicator
must determine the “intensity, persistence, and functionally limiting effects
of the symptoms,” which in turn requires an evaluation of the claimant’s
credibility. See SSR 96-7P.
In determining a claimant’s credibility, “[a]n individual's
statements about the intensity and persistence of pain or other symptoms or
about the effect the symptoms have on his or her ability to work may not be
disregarded solely because they are not substantiated by objective medical
evidence.” SSR 96-7P. “[T]he adjudicator must not draw any inferences about
an individual's symptoms and their functional effects from a failure to seek
or pursue regular medical treatment without first considering any
explanations that the individual may provide, or other information in the
case record, that may explain infrequent or irregular medical visits or
failure to seek medical treatment.” Id.; see also Newell v. Commissioner of
Social Security, 347 F.3d 541, 547 (3d Cir. 2003), finding that a lack of
corroborating medical evidence alone was an insufficient reason for the ALJ
to discredit the claimant’s testimony about her pain and ability to function.
Furthermore, the adjudicator must consider the whole case record
in the credibility assessment, including statements provided by treating
physicians. See SSR 96-7P. A treating doctor’s opinion is accorded
controlling weight if it is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence” in the record. 20 C.F.R. § 416.927(c)(2); see also
Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000) (citations omitted).
Other factors which may be considered in assessing the claimant’s
credibility include the claimant’s “daily activities,” such as vocational
history, and medication and other treatment used to relieve her symptoms.
See SSR 96-7P. Work performed during an allegedly disabling period, even if
not substantial gainful activity, may be probative as to one’s functional
abilities. See 20 C.F.R. § 404.1571.
The United States Court of Appeals for the Third Circuit has
“repeatedly emphasized that the special nature of the proceedings for
disability benefits dictates extra care on the part of the agency in
developing an administrative record and in explicitly weighing all evidence.”
Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (citing Dobrowolsky v.
Califano, 606 F.2d 403, 406–07 (3d Cir. 1979)). “In the absence of an
[explanation], the reviewing court cannot tell if significant probative
(Footnote 2 continued):

-4-

(Continuation of footnote 2):
evidence was not credited or simply ignored.” Burnett v. Commissioner of
Social Security Administration, 220 F.3d 112, 121 (3d Cir. 2000) (citing
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)). Furthermore, the Third
Circuit has held that unless the ALJ has evaluated all evidence and
adequately explained the weight given to probative evidence, deeming the
decision supported by substantial evidence practically constitutes an
abandonment of the court’s responsibility to review the entire record to
ensure that rational conclusions were reached. Gober v. Matthews,
574 F.2d 772, 776 (3d Cir. 1978).
I conclude that the ALJ’s determination that plaintiff did not
suffer from disabling ulcerative colitis through her date last insured is not
supported by substantial evidence in the record.
Here, the ALJ acknowledged that plaintiff’s two treating
physicians, Dr. Kristi Kotz and Dr. Timothy Orphanides, certified that
plaintiff’s ulcerative colitis likely existed at least six months prior to
January 2004. Defendant is correct in asserting that these estimations do
not establish the level of severity of plaintiff’s colitis or her functional
limitations through her date last insured. However, the ALJ did not address
paragraph 4 of Dr. Kotz’s statement, which speaks directly to plaintiff’s
credibility with respect to the severity of her symptoms during that time
period:
The absence of other references in [plaintiff’s]
medical records before 2004 is not really surprising and it
does not indicate that ulcerative colitis was not present.
After her gall bladder surgery in May 2002, her surgeon
would have explained that changes in her bowel movements
were likely following the surgery, so Ms. Anderson would
likely have thought the very frequent, loose bowel
movements and abdominal pain were related to the gall
bladder surgery rather than evidence of ulcerative colitis,
an independent disease. Based on my experience, patients
are often embarrassed to talk about problems with their
bowel functions, and that no doubt played a part in Ms.
Anderson’s waiting until her disease was very advanced
before seeking medical attention.
Certification of Kristi Kotz, D.O., dated December 29, 2010, Exhibit 21F
(Document 7-12).
The ALJ does not offer any explanation why she discounted
Dr. Kotz’s reasoning that plaintiff may have been dissuaded from seeking
medical attention for her alleged symptoms, both because of embarrassment and
because plaintiff’s surgeon would have advised her that she might experience
the same symptoms as a result of her gall bladder surgery. This evidence is
consistent with plaintiff’s testimony regarding her symptoms, as well as with
the objective medical evidence (in this case, the lack thereof) through the
last date insured.
(Footnote 2 continued):

-5-

IT IS FURTHER ORDERED that defendant’s objection to
Magistrate Judge Lloret’s recommendation that the ALJ consult
with a medical advisor in order to infer the onset date of
plaintiff’s disability is overruled. 3

(Continuation of footnote 2):
Because paragraph 4 of Dr. Kotz’s certification supports
plaintiff’s account of her symptoms prior to December 31, 2003, it was error
for the ALJ to disregard it completely without explaining the reasoning
behind the omission. The ALJ improperly used the lack of medical records as
a basis for discrediting plaintiff’s testimony without first considering
Dr. Kotz’s explanation behind the lack of records. See Newell, 347 F.3d at
547. Thus, defendant’s objection on this point is overruled.
Furthermore, I conclude that the determination by the ALJ does
not comport with the requirement to give proper weight to the opinion of a
treating physician. See 20 C.F.R. § 416.927(c)(2). Instead, the ALJ
improperly rejected Dr. Kotz’s opinion that colitis caused plaintiff’s
symptoms in favor of her own “lay opinion” and speculation that plaintiff’s
gall bladder was the cause of her symptoms. See Morales, 225 F.3d at 317.
Thus, defendant’s objection on this point is overruled.
Regarding plaintiff’s work history, Judge Lloret stated that it
“seems a thin reed to lean upon in inferring that [plaintiff] was able to
engage in substantial gainful activity in 2002-2003.” R&R at page 16. Judge
Lloret’s characterization of the ALJ’s reliance on plaintiff’s work history
seems to cross the line into re-weighing evidence. However, this error is
harmless. Judge Lloret did not discount plaintiff’s work history, but rather
conceded that some inferential value could be drawn from plaintiff’s parttime work. His dissatisfaction relates to the ALJ not discussing other
evidence in the record and seemingly relying solely on plaintiff’s work
history. I do not adopt this section of the R&R. Rather, I conclude that
Magistrate Judge Lloret’s discussion is mostly dicta and unnecessary to
support his other conclusions and recommendations which I do approve and
adopt. Thus, I dismiss defendant’s objection on this point as moot.
Accordingly, based upon the foregoing and the reasons and
analysis contained in Magistrate Judge Lloret’s R&R, I remand this matter to
the Commissioner of Social Security so that she may have the ALJ reconsider
the evidence supporting plaintiff’s credibility in regards to her symptoms.
3

Magistrate Judge Lloret also recommends that on remand, the
Commissioner further develop the record with medical expert testimony because
there is a lack of contemporaneous evidence with which to infer plaintiff’s
disability onset date. See SSR 83-20.
(Footnote 3 continued):

-6-

IT IS FURTHER ORDERED that plaintiff’s request for
review is granted.

(Continuation of footnote 3):
Defendant argues that obtaining the testimony of a medical expert
is unnecessary under SSR 83-20 because plaintiff could afford medical
treatment through her date last insured and simply chose not to seek it.
SSR 83-20 mandates that an ALJ “should call on the services of a
medical advisor when onset must be inferred.” SSR 83-20. When an impairment
is “slowly progressive,” the alleged onset date and date of last employment
were in the distant past, and sufficient medical records are unavailable for
the time period in question, it is necessary to infer the onset date by
consulting with a medical advisor. See Walton v. Halter, 243 F.3d 703, 709
(3d Cir. 2001)(citing SSR 83–20).
Here, the alleged onset date of plaintiff’s slowly progressive
ulcerative colitis, sometime prior to December 31, 2003, was at least seven
years before the date of the ALJ’s decision. See Newell, 347 F.3d at 542,
549, holding that the ALJ should have consulted a medical advisor where the
alleged onset date was about three years prior to date of the ALJ’s decision.
There are no medical records available from the time of plaintiff’s gall
bladder surgery in 2002 until she was diagnosed with ulcerative colitis in
mid-2004. Thus, plaintiff meets the criteria for the necessary application
of SSR 83–20.
It is true that plaintiff was able to afford treatment, unlike
the claimant in Newell, and did not seek it out. However, as discussed in
footnote 2, supra, plaintiff may have had a valid reason for not seeking
medical attention: either because of embarrassment, or because she would not
have recognized that her alleged abdominal pain and loose bowel movements
were indicative of a disease independent from her gall bladder surgery. Both
of these explanations were acknowledged as possible by plaintiff’s treating
physician, Dr. Kotz, based on Dr. Kotz’s own medical experience with patients
suffering from bowel problems.
The case law defendant cites to suggest embarrassment is not a
valid reason for failing to seek medical treatment is not from the United
States Court of Appeals for the Third Circuit, nor from any district court
within the Third Circuit, and thus is not precedential. Moreover, I do not
find the cases cited by defendant persuasive. Rather, the fact that
plaintiff’s treating physician asserted that patients are often embarrassed
to seek treatment for bowel problems suggests that the excuse is not only
legitimate, but common.
Thus, I conclude that it was error for the ALJ not to consult
with a medical advisor, as required by SSR 83-20, in order to infer the date
on which plaintiff’s ulcerative colitis became disabling.
Accordingly, I remand this matter to the Commissioner of Social
Security so that she may direct the ALJ to more fully develop the record by
obtaining expert medical testimony on the issue of the onset date of
plaintiff’s disability.

-7-

IT IS FURTHER ORDERED that plaintiff’s request for
remand is granted.
IT IS FURTHER ORDERED that judgment is granted in
favor of plaintiff Patrice Eileen Anderson and against defendant
Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration.
IT IS FURTHER ORDERED that the decision of the
Commissioner dated February 15, 2011 and affirmed by the Appeals
Council on August 27, 2012 which denied benefits to plaintiff
Patrice Eileen Anderson is reversed.
IT IS FURTHER ORDERED that this matter is remanded in
accordance with the fourth sentence of 42 U.S.C. § 405(g) to the
Commissioner of the Social Security Administration for further
proceedings consistent with the Report and Recommendation and
this Order.
IT IS FURTHER ORDERED that the Clerk of Court shall
close this case for statistical purposes.

BY THE COURT:

/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge

-8-