DIGGS v. COLVIN

Filing 16

MEMORANDUM. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 5/28/2015. 5/29/2015 ENTERED AND COPIES E-MAILED.(lbs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARCELLA DIGGS,
Plaintiff,
v.

CIVIL ACTION
NO. 13-4336

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

MEMORANDUM
Schmehl, J. /s/ JLS

May 28, 2015

Pending before the Court is the report and recommendation of the Honorable
Linda K. Caracappa (Docket No. 14). Plaintiff filed objections to the report and
recommendation. As such, this matter is ripe for review. After a thorough review of the
report and recommendation and the administrative record, as well as all documents filed in
connection with the Complaint, I will decline to adopt the Report and Recommendation.
This matter is remanded to the Commissioner of Social Security for further proceedings in
order to properly consider Plaintiff’s credibility and its effect on her alleged impairments.
I.

STANDARD OF REVIEW
When timely objections are filed to a report and recommendation prepared by a
magistrate judge, the district court must review de novo the portions of the report and
recommendation to which objection is made. 28 U.S.C. § 636(b)(1).

II.

DISCUSSION
1. The ALJ did not properly assess Plaintiff’s credibility
At issue is whether the ALJ properly analyzed all evidence necessary to reach a

determination as to Plaintiff’s credibility. The ALJ found that the “objective evidence of
record does not support the claimant’s extreme physical complaints, and limitations, and
reveals that the claimant is not fully credible.” (Administrative Record 25) (hereinafter
“A.R.”). In analyzing the ALJ’s credibility determination, the Magistrate Judge found
that the ALJ’s assessment of the credibility of Plaintiff’s complaints does not warrant
remand, despite finding multiple errors with regard to that credibility assessment. I find
that the errors in the ALJ’s credibility determination require remand, as set forth below.
First, it is well-established that when a claimant has a lengthy work history of
continuous work, his or her testimony is entitled to “substantial credibility.”
Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir.1979) (remanding the case to the
ALJ where the ALJ failed to consider Dobrowolsky’s twenty-nine years of continuous
work when making a negative credibility finding as to his testimony about his pain).
Nonetheless, “a claimant's work history alone is not dispositive of the question of his
credibility, and an ALJ is not required to equate a long work history with enhanced
credibility.” Thompson v. Astrue, 2010 WL 3661530, (W.D.Pa. Sept.20, 2010).
In the instant matter, the Magistrate Judge noted that the ALJ failed to discuss
Plaintiff’s work history and found this “failure to expressly note plaintiff’s seventeen year
work history to not constitute reversible error.” 1 (Report and Recommendation p. 27)
(hereinafter “R&R”). However, I find that the ALJ should have recognized and discussed

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In fact, the administrative record shows that Plaintiff had a twenty-six year work history with
continuously covered quarters from 1980 to 1981and from 1984 to 2008. (A.R. 171-173.)

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Plaintiff’s long work history in evaluating her credibility. See Weber v. Massanari, 156
F.Supp.2d 486, 475 (E.D. Pa. 2001) (where the plaintiff worked at the same store for 15
years, “testimony regarding subjective complaints from a claimant with a long work
record is entitled to substantial credibility.”); Bond v. Astrue, 2011 WL 710207 (W.D.
Pa. 2011) (directing the ALJ to consider on remand the plaintiff’s long work history in
the context of his overall credibility determination); Jester v. Astrue, 2009 WL 348738
(E.D. Pa. Feb. 11, 2009) (finding that in the case of a plaintiff who worked for
approximately 20 years before she stopped working due to her disability, “[t]he ALJ
erroneously failed to recognize that Plaintiff’s long work history afforded substantial
credibility to her testimony concerning her limitations”) (citing Dobrowolsky 606 F.2d at
409)). Plaintiff worked for twenty-six years prior to her disability, twenty-four of them
continuously. This fact alone does not make her entirely credible, but it does need to be
taken into consideration when evaluating her credibility. Further, even if the ALJ’s
failure to consider Plaintiff’s long work history did not amount to reversible error by
itself, I find that when this error is taken together with the additional errors discussed
below regarding Plaintiff’s credibility, reversible error exists and remand is warranted.
Plaintiff also disagrees with the Magistrate Judge’s determination that the ALJ’s
failure to address or inquire into Plaintiff’s lack of insurance in making the credibility
determination was harmless error. Social Security regulations stated that an “individual's
statements may be less credible . . . if the medical reports or records show that the
individual is not following the treatment as prescribed and there are no good reasons for
this failure. However, the adjudicator must not draw any inferences about an individual's
symptoms and their functional effects from a failure to seek or pursue regular medical

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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.” SSR 96-7p. The regulations go on to list
several examples of this, such as when the “individual may be unable to afford treatment
and may not have access to free or low-cost medical services.” Id.
In the instant matter, the ALJ found that Plaintiff “ha[d] been non-compliant with
medication on more than one occasion, which reflect[ed] poorly on her credibility.” (A.R.
27.) The ALJ cited treatment records to support Plaintiff’s non-compliance with her
medication, but then failed to discuss the portions of those same treatment records that
indicated Plaintiff had not sought treatment for a year due to lack of insurance. (A.R. 922,
890, 893.) The Magistrate Judge found that the ALJ erred by failing to address or inquire
into plaintiff’s lack of insurance, but then found that this error was harmless. (R&R p.
24.) I find that the ALJ’s failure to consider whether Plaintiff could afford medical
treatment and medication due to the state of her insurance coverage was an error that
requires remand. See Vance v. Astrue, 2009 U.S. Dist. LEXIS 125322 (E.D. Pa. Dec. 11,
2009) (finding that an ALJ was prohibited from drawing an adverse inference from
plaintiff’s failure to treat his sleep apnea because he was unable to afford a CPAP
machine); see also Manuella v. Astrue, 2009 WL 1491451 (E.D. Pa. May 27, 2009) (ALJ
may not infer functional effect of symptoms without considering any explanations that
the individual may provide to explain a failure to seek treatment). As stated above, even
if this error alone was insufficient to warrant remand, when all the errors made by the
ALJ in the credibility determination are considered together, remand is warranted for a
proper credibility determination.

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Plaintiff also disputes the Magistrate Judge’s determination that the ALJ’s failure
to consider the observation of a Social Security Field Office employee was harmless
error. A Social Security Field Office employee indicated that Plaintiff “was
uncomfortable sitting for interview, appeared in be in pain, grimacing.” (A.R. 190.)
Social Security Rulings require that in evaluating the credibility of an individual’s
statements, an “adjudicator must also consider any observations about the individual
recorded by Social Security Administration (SSA) employees during interviews, whether
in person or by telephone.” SSR 96-7p. The Magistrate Judge found the ALJ’s failure to
“expressly reference the field officer’s notation” was harmless error because the ALJ had
considered a medical opinion statement which included a reference to the field officer’s
observations. (R&R, p. 25.) I find that the failure to consider the field officer’s notes as to
Plaintiff’s condition is reversible error, as the Social Security Ruling states that the ALJ
“must” consider any observations of SSA employees during interviews, which the ALJ in
this matter did not do, as there was no mention of said observations in his opinion.
Lastly, Plaintiff also disagrees with the Magistrate Judge’s finding that it was
harmless error for the ALJ to fail to consider the statement submitted by Charles Brown,
Plaintiff’s fiancée. Mr. Brown submitted a written statement regarding Plaintiff’s use of a
cane and medications. The Magistrate Judge found that this statement was cumulative
evidence which merely reasserted Plaintiff’s own statements, and therefore, the failure to
consider it was harmless error. (R&R pp. 25-26.) I disagree with the Magistrate Judge’s
determination, as an ALJ cannot ignore third party witness statements when judging the
credibility of a claimant. Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 122 (3d Cir.
2000). Ordinarily, the failure to consider third party statements constitutes reversible

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error. Zerbe v. Colvin, 2014 WL 2892389 (M.D. Pa. June 26, 2014), citing Burnett, 220
F.3d at 122. Whether the statement of Mr. Brown was cumulative or not, the ALJ needed
to consider it when performing his credibility determination as to Plaintiff. At a
minimum, Mr. Brown’s statement may have bolstered Plaintiff’s credibility, as it
supported her testimony regarding her use of a cane and medications. This error was not
harmless, particularly when taken together with all the other errors committed by the ALJ
in his credibility determination.
The ALJ’s errors in assessing Plaintiff’s credibility are not harmless, as
recommended by the Magistrate Judge. The ALJ’s credibility assessment was flawed by
his failure to discuss Plaintiff’s long work history, her lack of insurance, the third party
statement of her fiancée and the observations of the Social Security Field Office
employee. Therefore, I will not adopt the recommendation of the Magistrate Judge and I
will remand this matter to the ALJ to perform a proper credibility determination, taking
all of this information into consideration.
Further, because I find the ALJ’s credibility finding was flawed, and the RFC
determination, by necessity, was based in part upon this flawed credibility determination,
a new RFC determination must also be completed on remand. Therefore, I do not reach
Plaintiff’s other challenges to the Report and Recommendation.
III.

CONCLUSION
I will decline to adopt the Magistrate Judge’s Report and Recommendation. I will

remand this matter to the Commissioner for further proceedings consistent with this
opinion.

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