Patton v. Colvin

Filing 16

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William J. Nealon on 10/27/17. (ao)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GINGER PATTON,
Plaintiff
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant

:
:
:
:
:
:
:
:

No. 3:16-CV-2533
(Judge Nealon)

MEMORANDUM
Background
On December 22, 2016, Plaintiff, Ginger Patton, filed a complaint seeking
review of the Commissioner of the Social Security Administration’s
(“Commissioner”) denial of her application for Supplemental Security Income
under Title XVI of the Social Security Act. (Doc. 1). On March 1, 2017,
Defendant filed an Answer and Transcript. (Docs. 7 and 8). On April 11, 2017,
Plaintiff filed a brief in support of the complaint. (Doc. 9). On June 9, 2017,

Nancy A. Berryhill became the new Acting Commissioner of Social
Security on January 23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
1

Defendant filed a brief in opposition. (Doc. 13). A Report and Recommendation
(“R&R”) was issued by United States Magistrate Judge Martin C. Carlson on
October 12, 2017, recommending that the appeal be denied, the decision of the
Commissioner be affirmed, final judgment be entered in favor of Defendant and
against Plaintiff, and the Clerk of Court be directed to close this matter. (Doc. 15).
No objections have been filed, and the matter is now ripe for review. Having
reviewed the reasoning of the Magistrate Judge, the R&R will be adopted in part.
Standard of Review
When neither party objects to a magistrate judge’s report and
recommendation, the district court is not statutorily required to review the report,
under de novo or any other standard. Thomas v. Arn, 474 U.S. 140, 152 (1985);
28 U.S.C. § 636(b)(1)(C). Nevertheless, the Third Circuit Court of Appeals has
held that it is better practice to afford some level of review to dispositive legal
issues raised by the report. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987), writ denied 484 U.S. 837 (1987); Garcia v. I.N.S., 733 F. Supp. 1554, 1555
(M.D. Pa. 1990) (Kosik, J.) (stating “the district court need only review the record
for plain error or manifest injustice”). In the absence of objections, review may
properly be limited to ascertaining whether there is clear error that not only affects
the rights of the plaintiff, but also seriously affects the integrity, fairness, or public
2

reputation of judicial proceedings. Cruz v. Chater, 990 F. Supp. 375, 377 (M.D.
Pa. 1998) (Vanaskie, J.).
Discussion
Initially, the Magistrate Judge appropriately sets forth the standard for
reviewing a Social Security appeal and the Sequential Evaluation Process used by
an administrative law judge to determine whether the claimant is disabled, which
are herein adopted as such. (Doc. 15, pp. 7-12). The Magistrate Judge also
reviews the medical records and the ALJ’s decision, also herein adopted as such.
(Id. at pp. 4-7). Ultimately, Magistrate Judge Carlson determines that the ALJ’s
decision that Plaintiff’s impairments did not meet any Impairments Listings at
Step Three and that the ALJ’s RFC determination that Plaintiff could perform light
work with some limitations are supported by substantial evidence and
recommends that this Court affirm the decision of the Commissioner. (Id. at pp.
13-20).
Neither party having objected to the Magistrate Judge’s recommendations,
this Court has the duty to review the R&R for clear error. Upon review of the
administrative record and the R&R, Court finds no clear error with the R&R’s
recommendation that substantial evidence supports the ALJ’s decision at Step
Three. However, there is clear error with the R&R’s recommendation that the
3

ALJ’s RFC determination is supported by substantial evidence because, in
determining Plaintiff could perform light work, and thus lift and/ or carry up to
twenty (20) pounds, the ALJ effectively rejected the only medical opinion of
record regarding the amount of weight Plaintiff could lift and/ or carry, which was
ten (10) pounds, and seemingly substituted his own opinion for that of the medical
opinion provided. (Tr. 18).
The responsibility for deciding a claimant’s RFC rests with the
administrative law judge. See 20 C.F.R. § 404.1546. The Court recognizes that
the residual functional capacity assessment must be based on a consideration of all
the evidence in the record, including the testimony of the claimant regarding her
activities of daily living, medical records, lay evidence, and evidence of pain. See
Burnett v. Commissioner of Social Sec. Admin., 220 F.3d 112, 121-122 (3d Cir
2000). The Commissioner’s regulations define medical opinions as “statements
from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [a claimant’s] impairment(s), including
[a claimant’s] symptoms, diagnosis and prognosis, what [a claimant] can still do
despite impairments(s), and [a claimant’s] physical or mental restrictions.” 20
C.F.R. §404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate
every medical opinion received. See 20 C.F.R. §404.1527(c).
4

In arriving at the RFC, an administrative law judge should be mindful that
the preference for the treating physician’s opinion has been recognized by the
Third Circuit Court of Appeals and by all of the federal circuits. See, e.g.,
Morales v. Apfel, 225 F.3d 310, 316-18 (3d Cir. 2000). This is especially true
when the treating physician’s opinion “reflects expert judgment based on a
continuing observation of the patient’s condition over a prolonged time.”
Morales, 225 F.3d at 317; Plummer, 186 F.3d at 429; see also 20 CFR §
416.927(d)(2)(i)(1999) (“Generally, the longer a treating source has treated you
and the more times you have been seen by a treating source, the more weight we
will give to the source’s medical opinion.”).
However, when the treating physician’s opinion conflicts with a nontreating, non-examining physician’s opinion, the ALJ may choose whom to credit
in his or her analysis, but “cannot reject evidence for no reason or for the wrong
reason.” Morales, 225 F.3d 316-18. It is within the ALJ’s authority to determine
which medical opinions he rejects and accepts, and the weight to be given to each
opinion. 20 C.F.R. § 416.927. The ALJ is permitted to give great weight to a
medical expert’s opinion if the assessment is well-supported by the medical
evidence of record.
Pursuant to SSR 96-6p, an administrative law judge may only assign less
5

weight to a treating source opinion based on a non-treating, non-examining
medical opinion in “appropriate circumstances.” SSR 96-6p, 1996 SSR LEXIS 3.
This regulation does not define “appropriate circumstances,” but gives an example
that “appropriate circumstances” exist when a non-treating, non-examining source
had a chance to review “a complete case record . . . which provides more detailed
and comprehensive information than what was available to the individual’s
treating source.” Id. (emphasis added).
Regardless of what weight an administrative law judge affords to medical
opinions, the administrative law judge has the duty to adequately explain the
evidence that he or she rejects or affords lesser weight. Diaz v. Comm’r of Soc.
Sec., 577 F.3d 500, 505-06 (3d Cir. 2009). “The ALJ’s explanation must be
sufficient enough to permit the court to conduct a meaningful review.” Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d Cir. 2000).
Additionally, in choosing to reject the evaluation of a treating physician, an
ALJ may not make speculative inferences from medical reports and may reject the
treating physician’s opinions outright only on the basis of contradictory medical
evidence. Morales, 225 F.3d at 316-18. An ALJ may not reject a written medical
opinion of a treating physician based on his or her own credibility judgments,
speculation or lay opinion. Id. An ALJ may not disregard the medical opinion of
6

a treating physician based solely on his or her own “amorphous impressions,
gleaned from the record and from his evaluation of the [claimant]’s credibility.”
Id. As one court has stated, “Judges, including administrative law judges of the
Social Security Administration, must be careful not to succumb to the temptation
to play doctor” because “lay intuitions about medical phenomena are often
[incorrect].” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990).
Rarely can a decision be made regarding a claimant’s residual functional
capacity without an assessment from a physician regarding the functional abilities
of the claimant. See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) (“No
physician suggested that the activity Doak could perform was consistent with the
definition of light work set forth in the regulations, and therefore the ALJ’s
conclusion that he could is not supported by substantial evidence.”); 20 C.F.R.
§ 404.1545(a).
As two commentators have explained:
Sometimes administrative law judges assert that they - and not
physicians - have the right to make residual functional capacity
determinations. In fact, it can reasonably be asserted that the
ALJ has the right to determine whether a claimant can engage
in sedentary, light, medium, or heavy work. The ALJ should
not assume that physicians know the Social Security
Administration’s definitions of those terms. However, the
underlying determination is a medical determination, i.e., that
the claimant can lift five, 20, 50, or 100 pounds, and can stand
7

for 30 minutes, two hours, six hours, or eight hours. That
determination must be made by a doctor. Once the doctor has
determined how long the claimant can sit, stand or walk, and
how much weight the claimant can lift and carry, then the ALJ,
with the aid of a vocational expert if necessary, can translate
that medical determination into a residual functional capacity
determination. Of course, in such a situation a residual
functional capacity determination is merely a mechanical
determination, because the regulations clearly and explicitly
define the various types of work that can be performed by
claimants, based upon their physical capacities.
Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law and
Procedure in Federal Courts, 287-88 (2011) (emphasis added). The administrative
law judge cannot speculate as to a claimant’s residual functional capacity, but
must have medical evidence, and generally a medical opinion regarding the
functional capabilities of the claimant, supporting his or her determination. Doak,
790 F.2d at 29 ; See Snyder v. Colvin, 2017 U.S. Dist. LEXIS 41109 (M.D. Pa.
March 22, 2017) (Brann, J.) (“I find that substantial evidence does not support the
ALJ's ultimate determination. The ALJ's decision to discredit, at least partially,
every opinion of every medical doctor's RFC assessment of Snyder left the ALJ
without a single medical opinion to rely upon in reaching a RFC determination.
‘Rarely can a decision be made regarding a claimant's residual functional capacity
without an assessment from a physician regarding the functional abilities of the
claimant.’ Maellaro v. Colvin, Civ. No. 3:12-01560, 2014 U.S. Dist. LEXIS
8

84572, 2014 WL 2770717, at *11 (M.D. Pa. June 18, 2014).”); Wright v. Colvin,
2016 U.S. Dist. LEXIS 14378, at *45-46 (M.D. Pa. Jan. 14, 2016) (Rambo, J.)
(“Chandler stated that an ALJ need not obtain medical opinion evidence and was
not bound by any treating source medical opinion. Id. However, both these
statements are dicta. In Chandler, the ALJ had medical opinion evidence and there
was no contrary treating source opinion. Id. ‘[D]ictum, unlike holding, does not
have strength of a decision ‘forged from actual experience by the hammer and
anvil of litigation.’ . . . the only precedential holding in Chandler is the
unremarkable finding that an ALJ may rely on a state agency medical opinion that
the claimant is not disabled when there are no medical opinions from treating
sources that the claimant is disabled. See Chandler, 667 F.3d at 361-63. . . .
Consequently, with regard to lay reinterpretation of medical evidence,
Frankenfield, Doak, Ferguson, Kent, Van Horn, Kelly, Rossi, Fowler and Gober
continue to bind District Courts in the Third Circuit.”); Washburn v. Colvin, 2016
U.S. Dist. LEXIS 144453 (M.D. Pa. Oct. 19, 2016) (Conner, J.); Maellaro v.
Colvin, 2014 U.S. Dist. LEXIS 84572, at *32-34 (M.D. Pa. June 18, 2014)
(Mariani, J.) (“The ALJ’s decision to reject the opinions of Maellaro’s treating
physicians created a further issue; the ALJ was forced to reach a residual
functional capacity determination without the benefit of any medical opinion.
9

Rarely can a decision be made regarding a claimant’s residual functional capacity
without an assessment from a physician regarding the functional abilities of the
claimant. See Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986) (“No physician
suggested that the activity [the claimant] could perform was consistent with the
definition of light work set forth in the regulations, and therefore the ALJ's
conclusion that he could is not supported by substantial evidence.”). See also
Arnold v. Colvin, 3:12-CV-02417, 2014 U.S. Dist. LEXIS 31292, 2014 WL
940205, at *4 (M.D. Pa. Mar. 11, 2014); Gormont v. Astrue, 3:11-CV-02145, 2013
U.S. Dist. LEXIS 31765, 2013 WL 791455, at *7 (M.D. Pa. Mar. 4, 2013);
Troshak v. Astrue, 4:11-CV-00872, 2012 U.S. Dist. LEXIS 137945, 2012 WL
4472024, at *7 (M.D. Pa. Sept. 26, 2012). The ALJ’s decision to discredit, at least
partially, every residual functional capacity assessment proffered by medical
experts left her without a single medical opinion to rely upon. For example, three
physicians opined that Maellaro was limited in some way in his ability to stand
and/or walk: Dr. Dittman opined that Maellaro could stand/walk for less than one
hour, Dr. Singh believed that Maellaro could stand/walk for fewer than two hours,
and Dr. Dawson opined that Maellaro could not stand or walk for any length of
time. Tr. 183, 211, 223. In rejecting these three opinions, there were no other
medical opinions upon which the ALJ could base her decision that Maellaro
10

essentially had no limitations in his ability to stand or walk. Tr. 283.
Consequently, the ALJ's decision to reject the opinions of Drs. Singh and Dawson,
and the ALJ’s determination of Maellaro’s residual functional capacity, cannot be
said to be supported by substantial evidence.”); Gunder v. Astrue, Civil No. 11300, slip op. at 44-46 (Doc. 10) (M.D. Pa. Feb. 15, 2012) (Conaboy, J.) (“Any
argument from the Commissioner that his administrative law judges can set the
residual function capacity in the absence of medical opinion or evidence must be
rejected in light of Doak. Furthermore, any statement in Chandler which conflicts
(or arguably conflicts) with Doak is dicta and must be disregarded. Government
of Virgin Islands v. Mills, 634 F.3d 746, 750 (3d Cir. 2011)(a three member panel
of the Court of Appeals cannot set aside or overrule a precedential opinion of a
prior three member panel). ”); Dutton v. Astrue, Civil No. 10-2594, slip op. at 3739 (Doc. 14) (M.D. Pa. Jan. 31, 2012) (Munley, J.); Crayton v. Astrue, Civil No.
10-1265, slip op. at 38-39 (Doc. 17) (M.D. Pa. Sept. 27, 2011) (Caputo, J.).
In light of these precedential opinions, and upon review of the
administrative record, it is determined that the decision of the Commissioner is not
supported by substantial evidence because the ALJ made speculations and
inferences based on the medical evidence, and did not rely on any medical opinion
in arriving at the conclusion that Plaintiff could perform light work, which
11

involves occasionally lifting twenty (20) pounds. In arriving at the RFC
determination, the ALJ stated the following:
Since she reported lower back pain for a good portion of time
following her alleged onset date, she is limited to light work,
which in effect, includes lifting no more than 20 pounds
occasionally. Since records shortly after her back surgery by
her specialists show an excellent recovery, the undersigned is
not persuaded that she is currently limited to less than
sedentary work [as opined by the state agency physician].
(Tr. 18). Because the only medical opinion of record, which is that of state agency
physician Kurt Maas, M.D., limits Plaintiff to sedentary work, and more important,
to lifting and/ or carrying ten (10) pounds at most, the ALJ seemingly reinterpreted
the medical evidence in arriving at the conclusion that Plaintiff could lift and/ or
carry twenty (20) pounds. The fact that the ALJ is not “persuaded” by the medical
opinion due to medical evidence that Plaintiff was doing well post-surgery does
not mean that the RFC determination is supported by substantial evidence,
especially regarding the weight restrictions as opined by Dr. Maas. This Court
cannot ascertain from the analysis conducted by the ALJ how that decision-maker
was able to determine a residual functional capacity in the absence of any medical
opinion whatsoever regarding Plaintiff’s limitations involving weight restrictions.
The very definition of “light work” found in 20 C.F.R. § 416.967(b) makes it all
the more important that this case be remanded, for this regulation is as follows:
Light work involves lifting no more than 20 pounds at a time
12

with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job
is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities.
If someone can do light work, we determine that he or she can
also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long
periods of time.
20 C.F.R. § 416.967(b) (emphasis added). The fact that the ALJ did not give
weight to any opinion involving the weight restrictions, but rather seemingly
reinterpreted the medical evidence in arriving at the RFC determination that
Plaintiff could lift and/ or carry twenty (20) pounds, goes to support the
conclusion that the ALJ’s RFC determination is not supported by substantial
evidence. See Snyder, 2017 U.S. Dist. LEXIS 41109 at *13-14 (Brann, J.) (“The
ALJ failed to point to any specific medical evidence that would support a contrary
opinion on Snyder's standing/walking capabilities, and as a result, it appears that
the ALJ was forced to reach a RFC determination without the benefit of any
medical opinion. Accordingly, the ALJ's conclusion is not supported by
substantial evidence.”). Therefore, because the ALJ’s RFC determination that
Plaintiff could perform light work and lift and/ or carry up to twenty (20) pounds
is not supported by substantial evidence as it was a determination made in the
13

absence of a supporting medical opinion and was based on reinterpretation of the
medical evidence, the portion of the R&R that recommends that the ALJ’s RFC
determination be affirmed will not be adopted. Furthermore, pursuant to 42
U.S.C. § 405(g), the appeal will be granted and this matter will be remanded to
the Commissioner.
CONCLUSION
Based upon a thorough review of the evidence of record and in reviewing
the R&R for clear error, the Report and Recommendation, (Doc. 15), will be
adopted in part regarding the recommendation that the ALJ’s Step Three
determination is supported by substantial evidence and will not be adopted in part
regarding the recommendation that the RFC determination is supported by
substantial evidence. Accordingly, because the RFC determination is not
supported by substantial evidence, it is determined that the Commissioner’s
decision is not supported by substantial evidence. Therefore, pursuant to 42
U.S.C. § 405(g), the appeal will be granted, the decision of the Commissioner
will be vacated, judgment will be entered in favor of Plaintiff and against
Defendant, and the matter will be remanded to the Commissioner of the Social
Security Administration.
A separate Order will be issued.
Date: October 27, 2017

/s/ William J. Nealon
United States District Judge

14