Lawrence v. Colvin

Filing 18

MEMORANDUM (Order to follow as separate docket entry)Because of the infirmities discussed above, the Court concludes that the Commissioner's decision is unsupported by substantial evidence as required by Richardson v. Perales, supra. This case m ust be remanded to the Commissioner to either conferbenefits because substantial evidence clearly exists to support that result, or to determine whether there exists in this record any medical evidence upon which the Social Security Administration can rely to subordinate the collective opinions of Drs. Brinser, Harman, Bice, and Dall. An Order consistent with the foregoing determination will be filed contemporaneously herewith.Signed by Honorable Richard P. Conaboy on 6/24/15. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRI CT OF PENNSYLVANIA
Tonya M. Lawrence
Case No.

Plaintiff

3:14-CV-1606

v.
(Judge Richard P. Conaboy)

Carolyn W. Colvin
cting Commissioner o f
Social Security

FILED
SCRANTON

Defendant
Memorandum

I.

A.

-r--­

PER ____~~----~~

Background
Procedural background

We consider here Plaintiff Tonya Marie Lawrence's appeal from
the final decision of the Social Security Administration ("SSAU)
denying her dual applications for Social Security Disability
Benefits

("DBIU) and Supplemental Secur ity Income Benefits ("SSI U)

The Administrative Law Judge ("ALJU )who evaluated these claims
found that Plaintiff has the residual functional capacity ("RFC U)
to perform sedentary work with certain additional limitations
(R .17 ) and that jobs exist in significant numbers in the nati o nal
economy that Plaintiff can perform (R . 24 - 25) .

Thus, the ALJ denied

Plaintiff's claims and that denial became a final decision o f the
SSA when it was upheld by the Appeals Council on June 20, 2014.
(R.1-5) .

Plaintiff appealed to this Court in timely fashion by

Complaint filed August 15, 2014 .

(Doc . 1).

Plaintiff's Complaint

speci

es seven alleged errors by the ALJ and asks this Court to

reverse
alternat

Commissioner's decision and award benefits or, in the
, remand this matter for a rehearing to "remedy the
the ALJ's f

errors
B.

1 decision."

(R.38-39) .

Testimony Before the ALJ

Plaintiff was born on June 3, 1973 and was not quite 40 years
of age on the date (April 23, 2013) of

r hearing

the ALJ.

Present at that hearing were ALJ Theodore Burock, Vocational Expert
Paul Anderson, Plaintiff, and her Attorney, Cynthia Von Schlichten.
Plaintiff testified that she is 5'1" tall and weighed 150 pounds.
(R.38-39).

She also testified that she was in the process of

obtaining a divorce and that she currently rents an apartment which
she is able to afford as a result of chi
ident to a

receives

ous marriage.

arrearage payments she
(R. 39-40) .

aintiff

has a driver's licence and drives "pretty much every day"
to ten minutes getting back and forth to school.

r five

(R.40-41)

is studying to be a drug and alcohol abuse counselor s

She
the fall

of 2011 and had completed three semesters of course work toward
that credential at the t
PIa

iff stated that she became disabl

(Doc. 1 at 2; R.42) and
ate.

(R.42)

ayments

of her hearing.

(R.41).
on March 4, 2011

she has not worked at all since that

She had been receiving Workmen's Compensation
ous to her alleged onset date

continued receiving

them until approximately October of 2012 when she settled t

2

.

Workmen! s Compensation claim.

(Id) .

had been receiving

approximately $600.00 weekly due to a work-related injury involving
her back.

(Id) .

iff's only income at the time of her

hearing was the aforementioned child support arrearage payments.
(R.43).

She also stated that she is anticipating rece

of

funding from the Pennsylvania Office of Vocational Rehabilitation
to

lp finance her education but that she has not received any
hearing.

financial support from that agency as of the date of
(Id).

ocational Rehabilitation suggested
test

Office of

Plaintiff also stated that her counselors at

she get psychological

she "get some accommodations at school

with the aim

because I am having trouble focusing and concentrating./I

(Id).

aintiff also testified regarding back and shoulder pain and
chronic pain syndrome.

She stated t

back and all her joints.

she has pain in her low

She indicated that her shoulders both

bother her and that the left is more troublesome than the right.
She stated further t
she

s constant pa

she is right-hand dominant and that, while
some days are better than

indicated that wet or cold weather tends to make

rs.

She

r pain worse.

(R. 44-46) .

Plaintiff testified that she takes morphine, Neurontin and
Tizan

ne for her pain and also uses a Fentanyl

a low dose of these narcotics and

ch.

She is on

r use of them is closely

onitored by her doctor because of

3

history of cocaine use.

(R.46).

She stated that she has not

s and that she attends AA meet
PI

cocaine in more than four
twice weekly.

ntiff testified further that these pa

pain but they do not eliminate it.
side-ef

(Id).

of making her "tired a lot."

(R.47).

medications do curb her
The medications have a
(Id).

Plaintiff stated

she took two to three months of physical therapy which neither
nor hurt her and some injections which did not have much
on her back pain.

(Id) .

aintiff also testified that when she awakes in the morning
still feels tired and att
(R.4S).

this to the medications s

She related a

story of a series of abdominal

surgeries that gave her problems when she walked and
but noted that these symptoms got

r over time.
attempts.

then described three separate sui

(R. 49-50)

The first of

se

occurred when she stabbed herself in the stomach when she was lS;
the second time she slashed her

sts; and the third time, which

happened only two weeks before

hearing, involved another

attempt to stab herself which was stopped by her boyfri
ervention.
ho

's

The first two of these suicide attempts resulted in

talizations.

(R. 50-51) .

Plaintiff advised that her last suicide attempt was triggered
because she had been "gong through a lot lately."
a combination of her financ
had made her suicidal.

She stated that

1 problems, her pain, and

(R. 52).

She denied further suic

4

ssion
1

..

ideation at her hearing, but stated that she had gone to a
psychiatrist who put her on a different medication for her
depression.

She also indicated that she was seeing a therapist

with regard to her psychological problems for the first time since
her third attempt at suicide.

(R.54).

She stated that she was

taking medication to help with her depression and that it was
helping although she also noted, once again, that she did feel
tired.

She could not say whether the fatigue she feels is a side

effect of the new depression medication.

(R. 55) .

Plaintiff testified further regarding her physical capacities
as follows: She can: walk approximately one block before needing to
sit and rest for approximately 20 minutes; lift approximately five
pounds with both hands; stand for 20-30 minutes before needing to
sit down or lay down; and sit for 45 minutes to one hour before
needing to change position.

(R. 55-56) .

She stated that she can

take care of her personal hygiene and cook but that she does not do
any cleaning or laundering.

(R.56-57).

With regard to social

activities, her only outlet is her weekly AA meetings which last
one hour.

(R.57).

She started seeing an old boyfriend again about

two months before her hearing.

She stated that she smoked about

one half pack of cigarettes each day but does not drink alcoholic
beverages.

(R. 58) •

Upon questioning by her counsel, Plaintiff stated that, while
she has been attending school five days each week, she never has

5

lass for more than two and one half hours per day.

On Tuesdays

and Thursdays (her long days) she has an hour between classes.
finds school stress
lize well with

1 because as an adult student she
r class mates.

sn't

She also stated

than others both with respect to

some days are
hysical pain and

(R.59-60).

She

r bipolar symptoms.

She experiences at least

one bad day each week and misses school

en (R.61).

a

iff

has stated that she had been compliant in taking her medications
prior to her third suicide attempt some six weeks before the
ring, but stated that immediately a
changed her medications.

She stated

erward her physi

an

she no longer had
ng spells

suicidal ideation but was still experiencing daily
and plans to address those with her physician.

(R.60-62).

Plaintiff also stated that when she is experience a bad day in
terms of her phys
a pillow between
school in the
bipolar symptoms.

1 pain, she must lay down on a heating pad with
r legs.

She est

es that she miss

five days

ous semester because of her physical pain and
(R.62-65).

She stated also that a

er one of

her three hour days at school she is spent and takes a nap
immediately upon arriving home.

(R. 65-66) .

Also testifying was Paul Anderson, a vocational expert.
nderson stated

Mr.

he had studied the record and was familiar

with Plaintiff's work history.
edium exertional work.

He characterized

In response to a hypothet

6

r past work as
1 question

that asked him to assume an individual of Plaintiff's age,
education, and work experience with t

residual functional

capacity for sedentary work permitting a sit/stand option, and
that Plaintiff stand no more than 30 minutes

additional limitat

and sit for no more than 45 minutes at a time, never climb, only
occasionally stoop, bend, kneel, or crouch, have no exposure to
cold or dampness, have no exposure to unprotected heights or
dangerous machinery, be involved only in routine, repetit

work

involving one or two step procedures, and only occasionally receive
direction from s

rvisorsi Mr. Anderson stated that

could no longer
can perform va

iff

rm any of her past relevant work but that she
ous unskilled, sedentary jobs that exist in

significant numbers in the national economy.

When the hypothetical

question was amended to include the limitations that Plaintiff
would be unable to sit/stand or walk in any combination

r eight

hours at a time and would miss more than two days of work each
onth, Mr. Anderson responded that
limitations would render Plainti
C.

unemployable.

Medical Evidence

1.

r of these additional

Dr. Brinser

Dr. Earl H. Brinser, Jr., D.O., the Plaintiff's primary
treating physi
2010.

an, has been treat

P

intiff since

I of

Dr. Brinser, in consultation with Drs. Vincent Avallone,

Nicholas D'Angelo, and Gregory Wic

7

, has diagnosed

intiff as

suffering from chronic low back pain , lumbar spondylosis, multi­
level degenerative disc disease, status post L4-L5 decompressive
laminectomy and associated myofascial pain, and biopolar disorder.
(R.732 -7 33 and 736) .

Dr. Brinser has completed two separate

Physical Residual Functional Capacity Questionnaires regarding
Plaintiff, one dated January 10, 2012 (Doc. 29 F, R.849-53) and one
dated March 13, 2013 (Doc. 50 F, R .10 92 - 96) .
forms,

On each of these

Dr. Brinser indi cated that Plaintiff's prognosis was

guarded , that she was suffering from bipolar disorder , anxiety,
depression , and discogenic disease of the low back , and that she
had other physical limitations more severe than those found by the
LJ in his RFC determination (R . at 17).

Significantly, Dr . Brinser

also indi cated on both questionnaires that the Plaintiff could be
expected to miss more than four days of work each month.
2.

Dr.

Hartman

Dr. Stuart Hartman also treated Plaintiff fr om November 15,
20 10 thr ough February 20, 2013 . Dr. Hartman diagnosed Plaintiff as
suffering from displacement of lumbar intervertebral discs without
yelopathy and thoracic or lumbo - sacral neuritis or radiculitis,
unspecified.
Doc.

(Doc . 13 R, R . 673-96) ;

46 F, R.1065-81).

(Doc . 40 F, R.999 -1 023) ; and

Dr . Hartman treated plaintiff with various

pain medications including morphine sulfate tablets, Neurontin
tablets, and a Duralgesic transdermal patch as well as muscle
relaxants

(Meloxicam).

On February 2 , 1012, Dr. Hartman completed

8

Physical Residual Functional Capacity Questionnaire with regard
to Plaintiff that indicated that she had physical limitations more
severe than those found by the ALJ in her RFC
(R.17).

ermination.

Significantly, Dr. Harman also indicated that Plainti

could be expected to miss work about four days per month.

(Doc. 31

F, R.855-58).
3.

Dr. Bice

On January 28, 2012, Dr. Douglas E. Bice prepared an Employee
bility Assessment Form with regard to Plaintiff for the
Pennsylvania Department

Public WeI

reo

Dr. Bice was not

functioning at this time as a treating physician but as a
consulting/examining physician.

The record indicates that Dr. Bice

determined that Plaintiff was s

fering from depression with

anxiety and osetoarthritis.

Dr. Bice indicated that his assessment

was based upon a physical examination of Plaintiff as well as a
review of her critical history, medical records, and appropriate
tests and diagnostic procedures.

Dr. Bice concluded that Plaintiff

as permanently disabled by a "physical or mental disability which
ermanently precludes any gainful employment.1f

(Doc. 30 F.,

R.854).
4.

Dr. Dall

Dr. Ann Dall, a psychiatrist, treated P

intiff for bipolar

disorder, generalized anxiety disorder, and depression on at least
ine occasions between March of 2009 and September of 2012.

9

(Doc.

43 F, R.1033-59).
c

Dr. Dall stated that

aintiff expres

1 ideation at sessions conducted on June 19, 2012 (R.1036)

and December 21, 2011 (R.1047).

Dr. Dall also noted on several

occasions that Plaintiff lacks medical insurance which af
abil

y to stay on

uestionnaire compl
F) indicates that Pia

medications.

cted her

A Mental Impairment

by Dr. Dall on December 28, 2011 (Doc. 52
iff has "marked" functional limitations in

her activities of daily living, in ma

aining social functioning,

in maintaining concentration, persistence or pace, and that
iff had experienced three episodes of decompensation of at
least two weeks durat

during the preceding 12 months.

(R.11S3).

These periods of decompensation stemmed, in Dr. Dall's opinion,
from a chronic organic mental or a

ctive disorder that caused

ore than a minimal limitation of Plaintiff's ability to do any
basic work activity.

Dr. Dall also

cated that P

be expected to miss work more than
impairments could

intiff could

days each month, that her

cted to last at least 12 months, that her

impairments were consistent with the symptoms and limitations Dr.
Dall had identified, and that Plaintiff was not a malingerer.

D.

ALJ Decision

The ALJ determined that Plaintiff had not been under a
dis

lity since her alleged onset

e and made the

lowing

findings of fact and conclusions of law:
1.

The cia

meets the insured status requirements

10

(Id)

of the Social Security Act through De

r 31,

2015.
2.

claimant has not engaged in substantial gainful
activity since March 4, 2011, the all

onset date

(20 eFR 404.1571 et seq, and 416.971 et s
3.

).

claimant has the following severe
lumbar scoliosis, lumbar degenerat
and bipolar disorder.

rments:
sc disease,

(20 eFR 404.1520(c) and

416.920 (c) ) .
4.

The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of t

list

impairments

20 eFR Part 404, Subpart P, Appendix 1 (20 eFR
404.1520(d), 404.1525, 404.1526, 416.920(d)

416.925

and 416.926).
5.

er careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform sedentary
work as defined in 20 eFR 404.1567(a and 416.967(a)
except the claimant must be allowed to alternate
between sitting and standing, wherein the claimant
can sit for only 45 minutes at once and stand for no
more than 30 minutes at once.

The claimant can only

quently balance; occasionally bend, kneel, stoop,

11

crouch; and can never climb.

must

avoid concentrated exposure to cold

ures or

dampness and avoid all exposure to

za

such as

unprotected heights and dangerous equipment.
claimant is further limited to the

The

formance of
no more

simple, routine, repetitive tasks

than simple 1-2 step instructions, no more than
occasional interactions with the

sors, and no

independent decision making.
6.

The

aimant is unable to perform any

evant

t

work (20 CFR 404.1565 and 416.965).
7.

claimant was born on June 3, 1973

was 37

old which is defined as a younger individual
18-44, on the alleged disability onset date (20
CFR 404.1563 and 416.963).
8.

The claimant has at least a high school education
and is able to communicate in English (20 CFR
404.1564 and 416.964).

9.

Transferability of job skills is not material to the
determination of disability
Medical Vocational Rules as a

using the
k supports a

finding that the claimant is "not disabled," whether
or not the claimant has trans

job skills (see

SSR 82 41 and 20 CFR Part 404, Subpart P, Appendix

12

2) •

10. Cons ide

the claimant's

, education, work

experience, and residual functional capacity, there
are jobs

exist in significant numbers in the

national economy that the claimant can perform.

(20

CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

II. Disability Deter.mination Process.
The Commissioner is required to use a f
ermine whether a
Commissioner to ascerta

is disabled.
1) whether the

1

step analysis to
It is necessary for the
icant is engaged in a

substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of
benefits without

listed impairments, whereby he quali

es

inquiry; 4) whether the claimant can

erform his past work; 5) whether the claimant's impairment

"Disability" is defined as the "inability to engage in any substantial gainful activity by
eason of any medically determinable physical or mental impairment which can be expected to result
.n death or which has lasted or can be expected to last for a continuous period of not less that 12
onths ...." 42 U.S.C. § 423(d)(l)(A). The Act further provides that an individual is disabled
1

only ifhis physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate area
in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
2 U.S.C. § 423(d)(2)(A).
13

together with his age , education , and past work experiences
20 CFR

preclude him from doing any other sort of work.
404.1520(b)-(g),

§§

416.920(b)-(g); see Sullivan v. Zebley,

493 u.s.

521 , 110 S. Ct. 885 , 888 - 89 (1990).
The disability determination involves shifting burdens of
proof .

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past re l evant
If the claimant satisfies this burden, then the Commissioner

work .

ust show that jobs exist in the national economy that a person
with the cla imant ' s abi li ties , age, education , and work experience
can perform .

Mason v . Shalala,

993 F.2d 1058, 1064

(3d Cir. 1993)

As set out above , the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform .
(R. 17 ).
III. Standard of Review

This Court ' s review of the Commissioner 's final decision is
limited to determining whether there is substantial evidence to
support the Commissioner ' s decision .

42 U.S.C.

v . Apfel, 181 F . 3d 358, 360 (3d Cir . 1 999) .

eans " more than a mere scintilla .

§

405(g); Hartranft

Substantial evidence

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion ."

Richardson v.

Perales , 402 u.S . 389 , 401

also Cotter v. Harris , 642 F.2d 700, 704
14

(1971); see

(3d Cir . 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).

This oft-cited language is not

a

talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a

quantitative exercise.

A single piece of

evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence.

Nor is evidence substantial if it

is overwhelmed by other evidence-­
particularly certain types of evidence (e.g.,
that offered by treating physicians)--or if
it really constitutes not evidence but mere
conclusion.

See [Cotter,

642 F.2dJ at 706

("'Substantial evidence' can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.")

(footnote omitted).

The search for

substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely

15

deferential and becomes inste

a sham.

710 F.2d at 114.
This guidance makes clear it is necessary for the Secret
analyze all evidence.
ficiently expla
"to say that [the]

to

If she has not done so and has not
the weight given to all probative exhibits,
cision is supported by substantial evidence

approaches an abdication of the court's duty to scrutinize t
conclusions reached are

record as a whole to determine whether t
rational."
1979).

Dobrowolsky v.

Califano,

606 F.2d 403, 406 (3d Cir.

rcuit Court

In Cotter,

ari

that the ALJ must

considered which supports the result

not only state t

but also indicate what evidence was rejected: "Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason why probat

reason, an explanation from the ALJ of t

evidence has been rejected is required so that a reviewing court
can determine whet
Cotter,

r the reasons for rejection were improper."

642 F.2d at 706-07.

However, the ALJ need not undertake an
nce.

exhaustive discussion of all the
Ap f e 1, 2 0 4 F. 3 d 7 8 , 8 3 ( 3 d Ci r. 2 0 0 0).

See, e.g., Knepp v.

" The r e i s nor e

rement

that the ALJ discuss in its opinion every tidbit of evidence
included in the
. 2004).

"[W]

is substantial ev

"

Hur v.

Barnhart,

94 F. App'x 130, 133 (3d

re [a reviewing court] can determine that there
supporting t

16

Commissioner's

sion,

is not impli

the Cotter doct
Commi
2004)

. Appx. 771, 774

oner of Social Security, 89
(not precedent

Hernandez v.

/I

(3d Cir.

1).

A reviewing court may not set as

the Commissioner's final

sion if it is supported by substant
court would have

1 evidence, even if the

different

181 F.3d at 360 (ci

1 conclusions.

Hartranft,

Monsour Medical Center v. Heckler, 806 F.2d

1185, 1190-91 (3d Cir. 1986); 42 U.S.C.

§

405(g)

("[t]he findings

of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive

./1).

"However,

even if the Secretary's factual findings are supported by
tantial evidence,

[a court] may

whether the Secretary,

making his findings, applied the correct legal standards to the
s presented./I
Cir. 1983)

edberg v. Sch

ker, 721 F.2d 445, 447

(internal quotation omitted).

(3d

Where the ALJ's decision

ient detail to allow meaningful judicial

is explained in suf

ew and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See,

e.g., Albury v.

Commissioner of Social Security, 116 F. App'x 328, 330 (3d Cir.
2004)
112

(not precedent

(3d Cir. 2000)

ability to conduct

1)

(citing Burnett v. Commissioner, 220 F. 3d

("[O]ur primary concern has always been the

ngful judi

1 review./I).

An

s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or
17

made his or her decision.

atthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).

IV.

Discussion.
A. General Considerations

At the outset of our

ew of whether the ALJ has met t

substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.
adversar

Soci

See Dobrowolsky,

Security proceedings are not strictly

1, but rather the Social Security Administration provides

an applicant with assistance to prove his cla

Id.

"These

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act."
Education and Welfare,

Hess v. Secreta

of Health,

497 F. 2d 837, 840 (3d Cir. 1974).

As such,

the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
F.2d at 406.

Dobrowolsky, 606

Further, the court in Dobrowolsky noted "the cases

demonstrate that, consistent with the 1

islative purpose, courts

have mandated that leniency be shown in establishing the claimant's
disability, and that the Secretary's responsibility to rebut it be
strictly construed."

18

B.

Plaintiff's Allegations of Error

Plainti

assigns seven

legations of error:

erred by finding Lawrence's fibromyalgia to

non-severe;

LJ erred in finding that Lawrence's bipolar
edical List

12.04;

(2) the

sorder does not meet

(3) the ALJ failed to properly evaluate the

evidence submitted by Lawrence's treating phys
erred by fa

(1) the ALJ

iansi

(4) t

ALJ

ing to evaluate the opinion of Dr. Le, the

consultative examiner;

(5) the ALJ erred in his methodology

r

evaluating

aintiff's credibility concerning the severity of her

impairments;

(6) the ALJ e

in relying upon the Vocational

Experts testimony because his testimony may have been inconsistent
with the procedures specif

in SSR 00-4p; and (7) the ALJ's RFC

assessment is unsupported by substantial evidence.
unnecessary

It is

the Court to determine the accuracy of each of

Plaintiff's arguments because one argument, that contending that
the ALJ's RFC assessment is unsupported by substantial evidence, is
obviously correct and dispositive.

The ALJ simply did not

physician's findings to support his RFC

e any

ermination and, having

reviewed this entire medical record of almost one thousand pages,
this Court could find no medical evidence to support t
determinat

of the Plaintiff's RFC.

ALJ's

The ALJ's conclus

that

the Plaintiff could perform sedentary work provided the claimant
sit for no more than 45 minutes at a time and stand for no more
than 30 minutes at a time is completely contradicted by the

19

findings of two treating physicians, Drs. Brinser and Hartman, and
disinterested consulting/examining physician, Dr. Bice.
Similarly, the ALJ's finding that Plaintiff can perform simple,
repetitive work with only occasional interaction with supervisors
and no independent decision-making is inconsistent with the medical
evidence provided by Plaintiff's treating psychiatrist, Dr. Dall.
Dr. Brinser stated that Plaintiff could sit and stand or walk
between two and four hours in an eight-hour day and could not sit
or stand for more than 30 minutes at a time.

(R.850-51).

Dr.

Brinser also noted that Plaintiff's level of pain would inter
ith Plaintiff's attention and concentration needed to

re

rform even

simple work tasks "frequently" (meaning 34-66% of an eight-hour
workday in the context of the questionnaire to which Dr. Brinser
responded) .

(R. 850-51). Dr.

nser also found Plaintiff to have

postural limitations more severe than those suggested in the ALJ's
hypothetical question to the vocational expert and that the
Plaintiff could be expected to miss more than four days of work
each month.

(R.852) .

Dr. Hartman stated that Plaintiff could stand for 30 minutes
at a time and sit for one hour at a time, but that she could not
sit, stand or walk
workday.

r more than six hours in an eight hour

Dr. Hartman also noted that Plaintiff could be expected

to miss about four days of work per month.

20

(R.856-58) .

Dr. Bice, a presumably disinterested

2

physician to whom

Plaintiff was sent by the Pennsylvania Department of Public Welfare
a consultative examination did not complete a Physical
Capacities Questionnaire, but did conclude that Plaintiff's
condition was such that she was "permanently precluded from any
gainful employment."

(R.854).

The ALJ's hypothetical question to the vocational expert asked
him to assume that Plaintiff had physical capacities that no
physician believed she had.

The ALJ is free to reject medical

testimony where countervailing medical testimony exists, even
though great weight should normally be assigned to the opinion of a
treating physician.
r. 2000}.

Morales v. Apfel, 225 F.3d 310, 316-18 {3d

Here, however, the ALJ points to no medical evidence

to rebut the various limitations reported by Drs. Brinser, Hartman,
and Bice. 3 Beyond that, the ALJ did not consider the consistent

The Court is concerned that the ALJ's decision includes comment that suggests the
evaluations of Dr. Bice and Dr. Brinsler were to some degree animated by the "obvious desire of the
rovider to help the claimant's succeed in their (sic) claim for welfare benefits, thus insuring the
claimant retain medical insurance and the ability to continue receiving the services provided by the
evaluator." (R.21-22). The Court notes that Dr. Bice, as a one-time examining physician retained by
he State, hardly had an interest in making Plaintiffs condition seem worse than it actually is. The
Court also notes that the ALJ has no evidence that Dr. Brinsler, Plaintiff s treating physician was
inflating her symptoms to ensure his continued compensation. The Court finds it categorically
impermissible for the ALJ to impugn the credibility of these medical witnesses for the reasons stated.
2

The ALJ relied upon a Disability Determination Explanation (Doc. 2A, R.75-91) by
itchell Sadar, Ph.D., who the ALl tells us is a highly qualified psychologist. (R.21). The opinion
of an individual who is not a medical doctor is categorically insufficient to establish a claimant's
C where contrary medical opinion exists. (See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986);
see also Drummond v. Commissioner of Social Security, 875 F.Supp 2d. 500, 509-10 (W.D.Pa.
3

21

opinions of Drs. Brinser, Hartman, and Dall that Plaintiff should
e expected to miss four days or more

work each month and this

unrefuted evidence is not reflected in the hypothetical question
that formed the basis for the ALJ's RFC determination.

This is

particularly significant and egregious because the vocational
expert unequivocally testi

ed that consistently missing more than

two days of work each month would render the Plaintiff
unemployable.

(R.71).

With respect to the ALJ's assignment of "great weight" to the
opinion of the State agency psychological consultant in concluding
that Plaintiff could do simple, repetitive sedentary work with the
additional limitations imposed by the ALJ's hypothetical question
to the vocational expert, the Court must observe that in listing
the records he reviewed before formulating his Disability
Determination Explanation, the consultant makes no mention of the
Plaintiff's treatment history with psychiatrist Ann Dall.

The

Court thus concludes that, in making his evaluation, the consultant
lacked information sufficient to conclude, as he did, that
Plaintiff had only insignificant mental limitations as opposed to
the marked limitations indicated by treating psychiatrist Dall
(Doc. S2F, R.llS3).

Dr. Dall's opinion reflected an expert

judgment based upon a continued observation of the patient's
condition over a prolonged period of time.

This constitutes an

012); and (Shedden v. Astrue, Civil No. 14-1274 (M.D.Pa. January 16, 2015)(Rambo, J.).

22

additional reason why the hypothetical question posed to the
vocational expert in this case was not accurately reflective of the
Plaintiff's true limitations as required by Third Circuit
precedent.

Morales v. Apfel, supra at 317.

Commissioner of Social Security,

See also Zirnsak v.

(3d Cir. 77 F.3d 607, 614,

2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 554

(3d Cir.

2005).
Conclusion
Because of the infirmities discussed above, the Court
concludes that the Commissioner's decision is unsupported by
substantial evidence as required by Richardson v. Perales, supra.
This case must be remanded to the Commissioner to either confer
enefits because substantial evidence clearly exists to support
that result, or to determine whether there exists in this record
any medical evidence upon which the Social Security Administration
can rely to subordinate the collective opinions of Drs. Brinser,
Harman, Bice, and Dall.

An Order consistent with the foregoing

determination will be filed contemporaneously herewith.
BY THE COURT

L!iulr f{1

H6norable Richar-d~~p-.b~~~----­
.
United States Distri
Dated: ----~------------~ --------~­
..

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