Preble v. Astrue et al

Filing 15

MEMORANDUM and ORDER adopting Report and Recommendation of Magistrate Judge Smyser 12 ; OVERRULING objections to the report & recommendation; Pltf 's appeal is GRANTED; Clerk of Court is directed to REMAND case to the Commisioner for proceedings consistant w/this opinion. Signed by Honorable James M. Munley on 2/25/09 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA STEWART E. PREBLE, Plaintiff, : No. 3:08cv292 : : (Judge Munley) : v. : : MICHAEL J. ASTRUE, : Commissioner of Social Security, : Defendant : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo r e the court are defendant's objections (Doc. 12) to Magistrate Judge J. A n d re w Smyser's Report and Recommendation (Doc. 11) in this social security d is a b ility case, which proposes that we grant the plaintiff's appeal and remand the c a s e to the Administrative Law Judge (ALJ). The matter has been fully briefed and is ripe for disposition. B a c k g ro u n d T h is case arises out of Plaintiff Stewart J. Preble's application for social s e c u rity disability benefits. Plaintiff, who is presently 39 years old, first filed a claim fo r social security disability insurance on October 25, 2005. (See Application for D is a b ility Insurance Benefits, Record (hereinafter "R.") at 39). He contended that he h a d become unable to work on April 13, 2004. (Id.). As the cause of his disability, p la in tiff complained of left leg sciatica, surgery on a hip, and lower back pain. (Disability Report­Adult, R. at 56). He asserted that he could not stand for more

th a n 15-20 minutes, could not shift his weight to the right, bend down to the floor to p ic k anything up, and had difficulty walking. (Id. at 56-57). He moved slowly, and w ith a limp. (Id. at 57). These problems made lifting items impossible. (Id.). P la in tiff's condition made driving difficult, and he fell frequently while walking due to le g problems. (Id.). Nerve pain forced him to carry a portable device to ease that p ro b le m . (Id.). He alleged that he suffered these injuries after he fell onto his b u tto c k s while making a delivery in February 2004. (Id. at 81). Plaintiff attempted to w o rk for several weeks after his initial injury, but eventually found the pain too sharp to continue. (Id. at 115). Plaintiff provided his work history to administrators evaluating his claim. Plaintiff had worked in a variety of jobs in the fifteen years before his alleged d is a b ility prevented further work. He worked as a quality inspector in a television p la n t, owned a retail fishing tackle business, fabricated truck and auto upholstery, m a n a g e d an auto parts store, sold auto parts, and delivered uniforms and supplies s u c h as rugs and towels to various businesses. (Id. at 65-71). All of these jobs had re q u ire d frequent walking and standing from the plaintiff, and also forced him o c c a s io n a lly to lift 100 pounds or more, and lesser weights frequently. (Id.). In his disability filings, plaintiff claimed that his physical condition presented g re a t limits to physical activity. In a November 2005 filing, plaintiff complained that h e could do little more during a day than move from his bed to the couch, where he w a s forced to lie on his back to limit sciatica pain. (Id. at 74). Plaintiff's pain made

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s le e p in g difficult, as pain from lying in the wrong position caused him to wake up. (Id.). He had difficulty dressing himself, and was forced to set up a chair in the s h o w e r to bathe, as he could not climb in or out of the tub and feared slipping and fa llin g in the shower. (Id.). Difficulties with standing for a long period of time made c o o k in g impossible. (Id. at 75). Plaintiff had formerly enjoyed this activity. (Id.). An in a b ility to bend over prevented plaintiff from engaging in house and yard work, and p la in tiff found he could not shop because of his limitations. (Id. at 76). Though he fo rm e rly loved outdoor activities like hunting, fishing, gardening and riding all-terrain ve h icle s , plaintiff's pain had led him to cease all such activities. (Id. at 77). The record contains a number of medical reports from various treating p h ys ic ia n s and evaluators. Plaintiff's physical therapist, who treated him for sixteen w e e k s following his initial injury in April 2004, reported that plaintiff had shown no p ro g re s s over this course of treatment, and that at his last visit he continued to drag h is left foot while walking and had "absent" reflexes in his left achilles. (Id. at 98). Dr. Matthew Brand, MD, began treating plaintiff for his pain and injuries here in question in 2004. On July 22, 2004, Dr. Brand examined plaintiff, diagnosing him w ith lower back pain and left sciatica. (R. at 189). He found that plaintiff had "some s lig h t tenderness over the left paraspinal musculature and mildly positive straight leg ra is e on the right, positive on the left." (Id.). The doctor suggested a referral to pain m a n a g e m e n t for an epidural steroid injection. (Id.). Plaintiff returned to Dr. Brand on O c to b e r 15, 2004. (Id. at 187). The doctor found him "really not doing a whole lot

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b e tte r." (Id.). The steroid injection had not provided any relief. (Id.). An exam again s h o w e d a positive straight leg raise on the left and a mildly positive one on the right. (Id.). A magnetic resonance imaging (MRI) exam revealed some b u lg in g disks, but Dr. Brand considered plaintiff's sciatic nerve more problematic. (Id.). Plaintiff had not responded to conservative treatment, and Dr. Brand had b e g u n to discuss surgical options with him. (Id.). On December 15, 2004, Dr. T h o m a s E. Borman, MD, examined plaintiff's back as a second opinion. (Id. at 185). Dr. Borman found no surgical treatment of the spine necessary, finding "full and p a in le s s " hip rotation with "some guarding and ratcheting when I attempt to rotate his le ft hip." (Id.). W a lkin g from heel to toe was somewhat difficult, and plaintiff had to h o ld onto the exam table to maintain balance. (Id.). Dr. Borman diagnosed "left s c ia tic a neuronegative." (Id.). D r. Brand's treatment of plaintiff continued into 2005. (Id. at 183). He saw p la in tiff on January 4, 2005, reporting that plaintiff still suffered from "sciatica type p a in from his left buttock posterior thigh, knee, posterior calf, and down to his foot." (Id.). Plaintiff had a "negative straight leg raise" and "[g]ood internal and external ro ta tio n of his hips." (Id.). Still, Dr. Brand reported that he had informed plaintiff that "ju s t the fact that he is not a surgical candidate does not necessarily mean he is not h a vin g a problem, just there is no obvious disc herniation causing his sciatica." (Id.). Brand suggested that plaintiff undergo nerve conduction studies to help diagnose his p ro b le m . (Id.). After plaintiff underwent these studies, he saw Dr. Brand again. (Id.

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a t 179-181). Dr. Brand reported that the nerve conduction study showed "some a b n o rm a lity in the peroneal nerve as well as the tibial nerve. (Id. at 179). He s u g g e s te d that plaintiff undergo a closed MRI to determine whether disc damage w a s involved. (Id.). Examinations on March 18 and May 2, 2005 revealed that p la in tiff continued to suffer similar symptoms. (Id. at 177). For the first time, h o w e ve r, Dr. Brand began to suspect that plaintiff suffered from piriformis syndrome, w h ic h could only be treated by "releas[ing] the piriformis to see how much im p ro ve m e n t he gets." (Id.). Plaintiff was then treated by David L. Mevorach, M.D., w h o administered a "diagnostic nerve block." (Id. at 153). Plaintiff reported to Dr. Brand on May 26, 2005 that his symptoms had improved for three days after this p ro c e d u re . (Id. at 174). Most of the discomfort returned within a few days, however. (Id.). After Dr. Brand explained the risks and potential rewards of surgery, plaintiff d e c id e d to have an operation. (Id.). Plaintiff saw Dr. Brand again on August 10, 2005 to discuss his impending o p e ra tio n . (Id. at 173). Dr. Brand explained that the operation did not guarantee im p ro ve m e n t in plaintiff's condition. (Id.). At the same time, plaintiff reported that his c o n d itio n worsened every day, and discomfort was spreading to the right side. (Id.). U n d e rs ta n d in g these risks, plaintiff determined to go forward. (Id.). On August 15, 2 0 0 5 , plaintiff was admitted to St. John's Hospital in Elmira, New York under the c a re of Dr. Brand. (Id. at 147). Dr. Brand performed this operation on August 15, 2 0 0 5 . (Id. at 149). Reports after the surgery indicate that plaintiff recovered fully

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fro m the surgery, but that he got little to no relief from his pain. (Id. at 169). By O c to b e r 5, 2005, plaintiff reported to Dr. Brand that he was in constant pain. (Id. at 1 6 8 ). Dr. Brand suggested that he continue with physical therapy in hopes of im p ro ve m e n t. (Id. at 168). W h e n Dr. Brand saw plaintiff on March 10, 2006, he reported that another p h ys ic ia n , Dr. Kung, had examined plaintiff and concluded that there was no e vid e n c e of disc herniation. (Id. at 228).1 Plaintiff would not benefit from any s u rg ic a l intervention. (Id.). Dr. Kung and Dr. Brand agreed that "Stewart is totally d is a b le d ." (Id.). Dr. Brand diagnosed plaintiff with a "piriformis decompression" and c o n c lu d e d treatment could best be achieved through activity modification and antiin fla m m a to ry medications. (Id.). He had reached "maximum medical improvement" a n d had a "permanent partial disability." (Id.). Dr. Brand saw plaintiff again on D e c e m b e r 12, 2006. He reported that he had rechecked plaintiff's left sciatica, and th a t his condition was "same as always." (Id. at 227). Dr. Brand was forced to e xp la in that he was "not sure there are any other options at this time." (Id.). Dr. Brand completed a medical report for the Social Security Administration in M a y 2007. (Id. at 229-233). He reported that he had treated plaintiff since June Dr. David C.Y. Kung, M.D., examined plaintiff on January 26, 2006. He reported that "[t]he straight leg raising test is positive on the left [and] patient is still able to walk on tiptoes and heels well without difficulty." (R. at 200). Dr. Kung diagnosed plaintiff as suffering from "left sciatica, cause to be determined." (Id. at 201). He reported that "[t]his gentleman's pain is increased by standing or sitting. There is a question of whether the disc will move out of place and irritate a nerve when he is in those positions." (Id.). The doctor recommended that "[t]he patient should be on temporary total disability for now." (Id.). 6
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2 0 0 4 . (Id. at 229). Brand diagnosed plaintiff with left sciatica, primiforma syndrome. (Id.). Plaintiff's response to treatment and prognosis were both "poor." (Id.). In a s s e s s in g plaintiff's ability to work, Dr. Brand reported that he could occasionally lift u p to twenty pounds, but could never carry more than ten. (Id. at 230). Even p la in tiff's lifting of ten pounds could only be occasional. (Id.). Though plaintiff could fre q u e n tly reach and push and pull with both hands and frequently handle and finger w ith them, he could not sit for more than thirty minutes at any one time. (Id. at 231). He also could not stand for more than thirty minutes at a time. (Id.). Other physicians examined plaintiff in connection with his disability claims. Dr. D a vid P. Roeltgen, M.D., conducted an independent medical evaluation (IME) on M a rc h 7, 2005. Dr. Roeltgen found that "patient does not have significant n e u ro lo g ica l deficits, I believe he does have significant disability. He cannot sit, s ta n d or walk for significant periods of time because of the severe discomfort. I do n o t think he can drive for any significant periods of time. He cannot lift our [sic] b e n d ." (Id. at 143). Dr. Pranab Datta, employed by the Division of Disability D e te rm in a tio n , examined plaintiff on December 5, 2005. (Id. at 196). Dr. Pratta re p o rte d that the "[c]laimant appeared to be in no acute distress." (Id. at 197). His g a it was "abnormal," and he limped "a little and drags his left foot while walking." (Id.). Plaintiff also "appeared to be in pain while walking." (Id.). Though plaintiff had d iffic u lty rising from his chair and walking on his heels and toes, he did not need a s s ista n c e to move around the operating room or to get on and off the exam table.

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(Id .). Datta diagnosed plaintiff as suffering from "low back pain probably secondary to [a] herniated disk." (Id. at 198). Plaintiff's prognosis was "stable." (Id.). W h ile p la in tiff suffered no limitations in relation to his speech, hearing, or upper extremities fo r fine and gross motor activities, plaintiff could not lift or carry heavy objects. (Id.). He also suffered "mild to moderate limitations for prolonged sitting, standing, w a lkin g , and climbing." (Id.). On June 7, 2007, plaintiff testified before Administrative Law Judge (ALJ) J a m e s Andres in a disability determination hearing. (Id. at 281-300). His testimony d e s c rib e d a deterioration in his condition since his initial disability filing in the fall of 2 0 0 5 . Plaintiff testified that he had not worked since April 13, 2004. (Id. at 283). He s to p p e d working on that date because his doctors told him he was no longer capable o f doing so. (Id. at 284). Plaintiff also reported that he had undergone an operation to address his physical problems, but the piriformis release did not solve them. (Id. a t 285). He continued to have pain when sitting or standing for any length of time; th e pressure that such action put on his sciatic nerve sent pain up and down from his fo o t to his lower back. (Id. at 286). The pain was "constant" from his lower back thro u g h his hip and down to his left toes. (Id.). Plaintiff described this pain as "a s h a rp and shooting pain down your, a shooting pain up and down the leg. And th e re 's a lot of tingling and numbness that goes on with that at the same time." (Id. a t 289). The pain had led to vomiting, difficulty sleeping, anxiety attacks and tre a tm e n t for depression. (Id. at 289-90). Pain medication offered only "minor"

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re lie f. (Id. at 290). Plaintiff occasionally used a cane for balance when the weather w a s bad and he had to walk a fairly long distance. (Id. at 293). Doctors had also to ld plaintiff that his condition would not improve, even with more surgery. (Id. at 2 8 6 ). Plaintiff reported that his pain made sitting for any length of time at all im p o s s ib le ; he had to keep moving around to avoid pain. (Id. at 287). Standing also c a u s e d a problem, since "the weight of your body pushing down on that area of your h ip and muscle where it, [sic] when you're walking or standing causes the pain to a lle via te or not alleviate, to progress more and more the longer you're standing." (Id.). A job that allowed plaintiff to stand or sit whenever he chose would not allow p la in tiff to work an eight-hour day, he reported, because "standing and sitting is what c a u s e s the pain." (Id. at 287-88). Plaintiff also reported that his doctor had re s tric te d his lifting to ten pounds or less. (Id. at 288). Plaintiff spent his days w a tc h in g television, eating, and doing simple tasks such as checking the mail. (Id.). Plaintiff was able to cook simple meals that took little time to prepare, but mostly re lie d on his parents for preparing meals. (Id.). He did not have any social life. (Id. a t 291). Though plaintiff could do little to relieve his condition, he did possess an e le c tric a l "tens unit" that assisted in blocking nerve pain and provided periods of re lie f. (Id. at 289). The ALJ issued a decision in plaintiff's case on September 17, 2007. (R. at 1 1 -1 7 ). The ALJ concluded that plaintiff was not disabled within the meaning of the

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S o c ia l Security Act. (Id. at 11). The ALJ engaged in the five-step sequential p ro c e s s required by Social Security Administration regulations in making this d e te rm in a tio n . First, he found that the claimant had not engaged in substantial g a in fu l activity since April 13, 2004. (Id. at 13). Next, the ALJ concluded that plaintiff s u ffe re d from the severe medically determinable impairment of sciatica. (Id.). In the th ird step of the analysis, the ALJ ruled that the plaintiff did not have an impairment o f combination of impairments that qualified him as disabled under the statute. (Id. a t 14). According to the ALJ, plaintiff's medical records did not reveal impairments s ig n ific a n t enough to establish long-term limitations. (Id.). The ALJ then determined th a t plaintiff had a residual functional capacity of lifting and/or carrying up to 10 p o u n d s occasionally and less than 10 pounds frequently, pushing and/or pulling c o m m e n s u ra te ly with the lifting/carrying capabilities, standing and/or walking (with n o rm a l breaks) for a total of about six hours in an eight-hour workday; and p e rfo rm in g non-exertional work-related activities that did not involve more than o c c a s io n a l bending, stooping, crawling, kneeling, or crouching. (Id.). This a s s e s s m e n t qualified plaintiff for "a mildly limited range of sedentary work." (Id.). The ALJ found that plaintiff could not perform any past relevant work, but that he had s k ills transferable to sedentary work available to him in significant numbers in the n a tio n a l economy. (Id. at 16). Accordingly, the ALJ found that plaintiff was not d is a b le d . The Social Security Appeals Council denied plaintiff's appeal of this d e c isio n , making the ALJ's decision the agency's final determination on the matter.

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(Id . at 4-6). P la in tiff then filed an appeal in this court. (Doc. 1). The case was referred to M a g is tra te Judge Smyser for pre-trial motions. After the parties briefed the issues in th e case, Magistrate Judge Smyser issued a report and recommendation. (Doc. 12). The magistrate judge found that the ALJ had improperly rejected the opinion of Dr. B ra n d , plaintiff's treating physician. (Id. at 10). The ALJ had placed too much e m p h a s is on the fact that Dr. Brand's opinion had been rendered in the context of a w o rk e r's compensation proceeding, and had not properly explained why the different s ta n d a rd s employed in workers' compensation and social security disability p ro c e e d in g s should make Dr. Brand's findings unreliable. (Id.). The ALJ, the m a g is tra te judge noted, had also reversed the usual proceedings of the Social S e c u rity Administration: normally, the SSA gives great deference to a treating p h ys icia n when that physician reports no disability, but had here decided that a p h ys icia n 's report of a disability should be given little significance. (Id.). Magistrate J u d g e Smyser also found that the ALJ had placed too much emphasis on the o p in io n Dr. Datta, who had examined plaintiff only once, in December 2005. (Id. at 1 1 ). Other medical evidence compiled from plaintiff's treating physicians closer to th e 2007 date of the hearing seemed to contradict Dr. Datta's finding of only small re s tric tio n 's on plaintiff's ability to work. Magistrate Judge Smyser also found that th e ALJ erred in finding that plaintiff lacked credibility in his complaints without p ro vid in g adequate documentation and support for that finding. (Id. at 17). As

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s u c h , the Magistrate Judge recommended that the appeal be granted and the case re m a n d e d to the Commissioner for further proceedings. (Id. at 18). The Commissioner filed objections to the report and recommendation. (Doc. 1 3 ). The parties then briefed their positions on the issues, bringing the case to its p re s e n t posture. Jurisdiction T h e court has jurisdiction over the instant action pursuant to 42 U.S.C. § 4 0 5 ( g ) .2 L e g a l Standard In disposing of objections to a magistrate judge's report and recommendation, th e district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. C a rls o n , 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to th e magistrate judge with instructions. Id. W h e n reviewing the denial of disability benefits, we must determine whether

"Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has the principal place of business." 42 U.S.C. § 405(g). 12

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th e denial is supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1 2 1 3 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993). Substantial e vid e n c e is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). T h e Social Security Act defines "disability" in terms of the effect a physical or m e n ta l impairment has on a person's ability to perform in the workplace. In order to re c e ive disability benefits, a claimant must establish that he is unable "to engage in a n y substantial gainful activity by reason of any medically determinable physical or m e n ta l impairment which can be expected to result in death or which has lasted or c a n be expected to last for a continuous period of not less than 12 months." 42 U .S .C . § 423(d)(1)(A). The Act further provides that a person must "not only [be] u n a b le to do his previous work but [must be unable], considering his age, education, a n d work experience, [to] engage in any other kind of substantial gainful work which e xis ts in the national economy, regardless of whether such work exists in the im m e d ia te area in which he lives, or whether a specific job exists for him, or whether h e would be hired if he applied for work." 42 U.S.C. § 423(d)(2)(A); Heckler v. C a m p b e ll, 461 U.S. 458, 459-60 (1983). In analyzing disability claims, the Commissioner employs a five-step s e q u e n tia l evaluation. 20 C.F.R. § 416.920. The initial three steps are as follows: 1) w h e th e r the applicant is engaged in substantial gainful activity; 2) whether the a p p lic a n t has a severe impairment; 3) whether the applicant's impairment meets or

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e q u a ls an impairment listed by the Secretary of Health and Human Services as c re a tin g a presumption of disability. If claimant's impairment does not meet re q u ire m e n t 3, the claimant must demonstrate 4) that the impairment prevents him fro m doing past relevant work. See 20 C.F.R. §§ 404.1520, 416.920. If the applicant e s ta b lis h e s steps one through four, then the burden is on the Commissioner to d e m o n s tra te the final step: 5) that jobs exist in the national economy that the c la im a n t can perform. Jesurum v. Secretary of the U.S. Dept. of Health and Human S e rvic e s , 48 F. 3d 114, 117 (3d Cir. 1995). D e fe n d a n t's Objections T h e Commissioner raises two objections to the report and recommendation. The court will address each in turn. A . The Magistrate Judge's Finding that the ALJ Improperly Rejected Dr. B r a n d 's Disability Opinion T h e Commissioner objects to the magistrate judge's finding that the ALJ im p ro p e rly rejected Dr. Brand's opinion on plaintiff's disability. No legal requirement e xis ts , the Commissioner argues, for the ALJ to defer to a physician's disability d ia g n o s is . A determination that a person has a disability is a legal conclusion, and d o c to r's reaching such a conclusion are not entitled to deference.3 In addition, the

The Commissioner also disputes the magistrate judge's finding that the ALJ improperly evaluated disability determinations by workers' compensation regulators. The Commissioner argues that the ALJ did not need to defer to any such findings, since the Social Security Administration's regulations control in this situation, not workers' compensation agency findings. The court finds that its decision on the Commissioner's objection regarding the weight given to Dr. Brand's opinion encompasses this objection as 14

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C o m m is s io n e r disputes the magistrate judge's conclusion that the ALJ did not give p ro p e r weight to Dr. Brand's findings and gave too much credit to Dr. Datta. Dr. B r a n d 's findings, the Commissioner insists, were inconsistent with the medical re c o rd . The Commissioner contends that the magistrate judge erred in making this d e te rm in a tio n , since it is not the province of the magistrate judge to resolve conflicts in the evidence. "A cardinal principle guiding disability eligibility determinations is that the ALJ a c c o rd treating physicians' reports great weight, especially `when their opinions re fle c t expert judgment based on a continuing observations of the patient's c o n d itio n s over a prolonged period of time.'" Morales v. Apfel, 225 F.3d 310, 317 (3d C ir. 2000) (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). If "the o p in io n of a treating physician conflicts with that of a non-treating, non-examining p h ys ic ia n , the ALJ may choose whom to credit but `cannot reject evidence for no re a s o n or for the wrong reason.'" Id. (quoting Plummer, 186 F.3d at 429). If the

tre a tin g physician opines that a plaintiff is disabled, "[t]he ALJ must consider the m e d ic a l findings that support a treating physician's opinion that the claimant is d is a b le d ." Id. The ALJ "may reject a treating physician's opinion outright only on the b a s is of contradictory medical evidence, but may afford a treating physician's opinion m o re or less weight depending upon the extent to which supporting explanations are p ro vid e d ." Plummer, 186 F.3d at 429.

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T h e court agrees with the magistrate judge that the ALJ did not give proper w e ig h t to the opinion of plaintiff's treating physician. Dr. Brand was plaintiff's treating p h ys ic ia n , and he saw him over a long period of time. Dr. Brand suggested several m e tho d s for treating the plaintiff. He found that none of these methods were p a rtic u la rly successful, and by the end of 2006 had concluded that plaintiff would not im p ro ve from his present condition. He based his assessment of plaintiff's capacity to work on these years of treatment and observation, and the ALJ did not offer a c o g e n t explanation for why he ignored these long observations in favor of opinions re n d e re d in 2004 and 2005, at the onset of plaintiff's illness. The plaintiff's a d m in is tra tiv e hearing came in 2007, and the medical evidence indicates that his c o n d itio n had deteriorated in the years between his initial injury and the disability d e te rm in a tio n . Relying on opinions rendered nearly two years previous to the d isa b ility determination does not provide substantial evidence for the ALJ's opinion. Indeed, the court concludes that the ALJ ignored the treating physician's opinion and in s te a d extended his own judgment to determine how to apply findings from 2004 a n d 2005 to plaintiff's condition in 2007. In effect, the ALJ did not point to any m e d ica l evidence to contradict the medical opinions rendered by Dr. Brand in 2006. Because Dr. Brand continued to treat plaintiff until the time of his administrative h e a rin g , the court agrees with the magistrate judge that the ALJ afforded Dr. Brand's m e d ica l opinion insufficient weight. The Commissioner also contends that the magistrate judge erred in finding

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th a t the ALJ gave improper deference to Dr. Datta's opinion on plaintiff's capabilities. Dr. Datta saw the plaintiff once, in December 2005, diagnosing him with low back p a in probably secondary to a herniated disk.4 (R. at 198). Datta found that plaintiff h a d only "mild to moderate limitations for prolonged sitting, standing, walking and c lim b in g . . . [and could not engage in] heaving lifting or carrying." (Id.). The court n o te s that Dr. Brand, not Dr. Datta, was plaintiff's treating physician. Dr. Datta saw p la in tiff only once, and before the continued deterioration and further (unsuccessful) m e d ic a l treatment plaintiff underwent during 2006 and 2007. The ALJ's opinion d o e s not explain why he rejected Dr. Brand's opinion in favor of Dr. Datta's, even th o u g h Dr. Brand had more data and experience on which to form his conclusions. The magistrate correctly found that the ALJ had improperly ignored "`opinions [that] re fle c t expert judgment based on a continuing observation of the patient's conditions o ve r a prolonged period of time'" in favor of a single observation made long before th e date of the disability determination in question. Morales, 225 F.3d at 317 (q u o tin g Plummer, 186 F.3d at 429). For those reasons, the court will overrule the C o m m is s io n e r's objections and adopt the magistrate judge's report and re c o m m e n d a tio n on this point. B . The ALJ's Credibility Finding T h e Commissioner also objects to the magistrate judge's finding that the ALJ

This examination came after plaintiff's operation, but before the results of that operation had become especially clear. 17

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d id not explain adequately or document properly his finding that plaintiff was not fully c re d ib le . The ALJ, the Commissioner insists, did provide such explanation and d o c u m e n t a tio n , finding that the record did not support plaintiff's claimed restrictions, s in c e the medical records did not indicate anything worse than mild objective fin d in g s . In addition, the ALJ­contrary to the magistrate judge's findings­did not s u b s titu te his own medical expertise for plaintiff's doctors' knowledge. Instead, the A L J pointed to the medical record in offering determinations about the plaintiff's c o n d itio n . Finally, the Commissioner argues that the magistrate judge improperly c o n c lu d e d that the ALJ did not give proper weight to plaintiff's work history in a s s e s s in g his credibility; the Commissioner points out that the ALJ accounted for this h is to r y, but reasonably concluded that plaintiff's subjective complaints did not match th e objective medical record. T h e court agrees with the magistrate judge on this matter. The ALJ found that p la in tiff's complaints of lower back pain and left leg sciatica limiting his ability to walk, lift, stand or sit were not supported by the medical evidence in the record. The ALJ c o n c lu d e d that "the objective findings have generally been too mild since at least O c to b e r 2004 . . . to reasonably account for the extent of the restriction alleged." (R. a t 14). While the ALJ discussed some of the medical evidence in the record in c o n n e c tio n with this opinion, he appears to have discounted information that e s ta b lis h e d major limitations for the plaintiff, and did not consider at all plaintiff's e xte n s ive work history. Moreover, as related above, the ALJ ignored or discounted

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th e medical evidence created after 2005, and then concluded that the complaints m a d e by plaintiff in his 2007 hearing were not supported by the medical record. Similarly, the court agrees with the magistrate judge that the ALJ improperly fa ile d to consider the plaintiff's long and consistent work history in making his c re d ib ility determination. Plaintiff had a history of working to support himself for at le a s t fourteen years before his injury. Indeed, the evidence indicates that the plaintiff a tte m p te d to continue working even after he injured himself. He left work at his d o c to r 's recommendation. Courts have concluded that "when the claimant has a w o rk record like [plaintiff's] twenty-nine years of continuous work, fifteen with the s a m e employer his testimony as to his capabilities is entitled to substantial c re d ib ility ." Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979). Plaintiff has a n extensive work history, and the ALJ did not discuss this work history in d is c o u n tin g plaintiff's subjective claims of pain and limitations. The magistrate judge p ro p e rly found that this credibility determination was not supported by substantial e vid e n c e . The court will therefore overrule the objection on these grounds as well. C o n c l u s io n T h e court will overrule the Commissioner's objections and adopt the report a n d recommendation. The plaintiff's appeal will be granted and the case remanded to the Commissioner for proceedings consistent with this opinion. An appropriate o r d e r follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA STEWART E. PREBLE, Plaintiff, : No. 3:08cv292 : : (Judge Munley) : v. : : MICHAEL J. ASTRUE, : Commissioner of Social Security : Defendant : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

ORDER AN D NOW, to wit, this 25th day of February 2009: 1 ) The report and recommendation of Magistrate Judge Smyser (Doc. 12) is h e re b y ADOPTED; 2 ) The defendant's objections to the report and recommendation (Doc. 13) are OVERRULED; 3) The plaintiff's appeal is granted; and 4 ) This Clerk of Court is directed to REMAND the case to the Commissioner fo r proceedings consistent with this opinion.

BY THE COURT:

s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court 20