HOWELL v. ASTRUE
Filing
11
MEMORANDUM OPINION AND ORDER granting 6 Motion for Summary Judgment; denying 9 Motion for Summary Judgment and remanding for further proceedings in accordance with the Opinion. Signed by Judge Terrence F. McVerry on 6/28/11. (mh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOYCE ANN HOWELL
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
02: 10-cv-1302
MEMORANDUM OPINION AND ORDER OF COURT
June 28, 2011
I.
Introduction
Pending before the Court are Plaintiff’s MOTION FOR SUMMARY JUDGMENT
(Document No. 6) and DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Document No. 9). Plaintiff, Joyce Ann Howell, brought this action pursuant to 42 U.S.C. §§
405(g) and 1383(c), for judicial review of the final determination of the Commissioner of
Social Security (“Commissioner”) which denied her applications for supplemental security
income (“SSI”) and disability insurance benefits (“DIB”) under Title II and Title XVI of the
Social Security Act (“Act”), 42 U.S.C. §§ 401-403; 1381-1383(f).
1
II.
Background
A.
Facts
Plaintiff, 53, was born on September 30, 1957 (R. 53) and graduated from New
Brighton High School in 1975. (R. 45, 145). After receiving her diploma, Plaintiff entered
into the workforce as a secretary (R. 47) and has since worked sporadically.
The record details Plaintiff’s relevant work experience beginning in 1993. From
March 1993 until April 1996, Plaintiff worked at Aliquippa Hospital in Pennsylvania,
preparing food in the cafeteria and delivering carts. (R. 201). In April 1996, Plaintiff took a
similar job at the Beaver Medical Center in Beaver, Pennsylvania (R. 201), where she worked
until November 1997. (R. 201). Plaintiff then resigned from her job at the Medical Center
after the death of her husband. (R. 201). The record reflects that Plaintiff worked as a cashier
and clerk at Giant Eagle from 1999 until 2000, and as a counter clerk at a dry cleaner during
2002. (R. 159-161). She also worked at Denny’s Restaurant and Shop and Save in 2001. (R.
414). However, the record is inconsistent regarding the time periods Plaintiff held the
positions at Giant Eagle, the dry cleaner, Denny’s, and Shop and Save.
In February 2004, Plaintiff began working as a dishwasher and hostess at Jerry’s
Restaurant in Aliquippa, until May 2007, when she was “let go” for missing work due to an
extended hospitalization after suffering a seizure. (R. 201). Finally, the record reflects that
from May 2007 until December 2007, Plaintiff worked at the Salvation Army as a clothing
sorter and men’s pricer, when she was again released from her employment after suffering a
seizure. (R. 201).
2
Plaintiff alleges disability as of January 20, 2006 (R. 9), due to having a diagnosed
seizure disorder. (R. 59). The record reflects that Plaintiff has not engaged in substantial
gainful work activity since January 2006. (R. 11).
Plaintiff has a family history of seizures, including “a maternal cousin who died in
his twenties from seizures.” (R. 463). Plaintiff’s first seizure occurred at age sixteen (16) and
she experienced a second seizure at age twenty-eight (28). (R. 50). She testified that,
beginning in 1996, the seizures grew increasingly more frequent after the death of her parents
in 1996 and 1997, and the death of her husband in 1998. (R. 50). Plaintiff also testified to
anywhere between zero (0) and five (5) seizures per month; however two (2) seizures a
month was the norm. (R. 51). These seizures take the form of both full seizures and “miniseizures” (R. 51). Plaintiff described that her full seizures cause her to “fall [over] and
convulse and shake[.]” (R. 50). She further stated that the “mini-seizures” cause her to
“shake, but I don’t go completely out[.]” (R. 50). Plaintiff testified that “mini-seizures” are
the most frequent of her seizures, during which she becomes confused, tired, and sleeps for
hours. (R. 51). Plaintiff has been prescribed anti-seizure medications. She takes one hundred
(100) milligrams of Dilantin1 three (3) times a day and fifty (50) milligrams of Topamax four
(4) times a day. (R. 49).
Plaintiff testified that although she takes anti-seizure medication, she nevertheless
continues to experience multiple seizures each month. (R. 51). Medical records detail
Plaintiff’s seizures dating back to 1998. (R. 11). One such seizure occurred on May 28, 1998,
1. Dilantin levels in Plaintiff’s medical records are referred to as Phenytoin. (R. 286).
3
for which she was hospitalized for a short time (R. 425). This seizure is noted in an
interoffice correspondence dated November 13, 1998, by Dr. Thomas M. Dugan (R. 424),
who noted that Plaintiff told him she had experienced three (3) seizures during the five (5)
months since their initial meeting in May 1998. (R. 422). Plaintiff told Dr. Dugan that after
one of the seizures, she was taken to the emergency room by ambulance. (R. 422). Dr. Dugan
noted, however, that “there is . . . a possibility that these [seizures] could be drug withdrawal
seizures.” 2 (R. 432).
Similarly, in an interoffice correspondence dated October 5, 1999, Dr. Dugan noted
that the Plaintiff reported having “several seizures” since their meeting in November 1998,
with the most recent occurring on in September 1999. (R. 421). Dr. Dugan noted that
Plaintiff admitted to having one glass of alcohol on the day of her seizure in September 1999.
(R. 421).
Three (3) years later, in a report dated May 17, 2002, Dr. Maria Simbra wrote that
Plaintiff was shopping in Giant Eagle and collapsed due to a seizure, which lasted for five (5)
minutes. (R. 412). Dr. Simbra noted that Plaintiff admitted to drinking alcohol the day prior
to the seizure. (R. 412). She also noted that Plaintiff’s Dilantin level was therapeutic 3 and
that the “seizure was most likely related to the alcohol level decreasing in her blood stream.”
(R. 413).
2. Plaintiff has a history of alcohol, drug, and Dilantin abuse. (R. 416).
3. A therapeutic level of Dilantin (Phenytoin) is between 10.0 and 20.0 ug/ml. (R. 286).
4
Furthermore, in a consult report dated April 1, 2003, Dr. Kevin Altman wrote that
the Plaintiff had a seizure the day before. (R. 406). She was heard screaming by her family,
but she did not remember anything regarding the seizure until she woke up in the hospital. (R.
406). Upon admission to the hospital and examination, Plaintiff’s Dilantin level was at a
therapeutic level and her blood-alcohol level was zero (0). (R. 407). About three weeks later,
on April 23, 2003, Plaintiff was found unresponsive in the waiting room of Dr. Simmon
Wilcox. (R. 404). A toxicology screen showed that Plaintiff tested positive for opiates and
benzodiazepine agents, and had a Dilantin level of 26.2 ug/ml, which is un-therapeutic. (R.
404).
Plaintiff had a fifteen (15) minute seizure in Giant Eagle on April 16, 2005
observed by several witnesses. (R. 278). The record reflects that the hospital collected
Plaintiff’s blood, which test results show that Plaintiff’s Dilantin level was a therapeutic 17.9
ug/ml, suggesting that she had been taking her medication the day of the seizure (R. 286).
Furthermore, there is no suggestion in the record that Plaintiff was under the influence of
alcohol or drugs at the time of this seizure. The record also suggests that Plaintiff was not
aware of her surroundings until a half an hour after her admission to the emergency room (R.
279).
Plaintiff continued to complain about seizures, and in an interoffice
correspondence dated May 12, 2005, Dr. Altman wrote that Plaintiff told him she continued
to have “mini-seizures” and had at least two “major seizures” a month. (R. 398). She also
informed Dr. Altman that she had a seizure in Giant Eagle, blacked out, and was incontinent
5
of urine. (R. 398). Plaintiff also informed Dr. Altman that in December 2005, she had a
seizure and was taken to Aliquippa Community Hospital, where she had another seizure, of
which there is no mention in Plaintiff’s medical record. (R. 394). Dr. Altman, in a
correspondence dated July 31, 2006, noted that Plaintiff told him she had been sick at the
time of her seizure, but Plaintiff did not know if she was taking any antibiotics. (R. 394). Dr.
Altman noted Plaintiff’s seizure in December 2005 may have been “due to something else
such as concurrent antibiotic use, which might have lowered the seizure threshold.” (R. 395).
Although Plaintiff complained of numerous seizures between 2006 and the present,
only four such seizures are documented in her medical records.4 (R. 207, 338, 342, 437).
The first of these seizures occurred on January 14, 2006. (R. 325). The Plaintiff “had two
episodes of seizures and was subsequently brought to the emergency room.” (R. 325). Dr.
Narayan Shetty, who consulted and examined Plaintiff on a number of occasions, stated that
although Plaintiff has a history of alcohol abuse, there was no evidence that she was under the
influence at the time, and her Dilantin level was 12.2 ug/ml, which is within the therapeutic
range. (R. 326). Over a year later, on November 27, 2007, Plaintiff’s second post-2006
seizure of record occurred. (R. 206). This seizure lasted ten (10) minutes and occurred while
Plaintiff was shopping. (R. 227). Plaintiff again became incontinent of feces. (R. 227).
Plaintiff’s medical records show that she admitted to drinking alcohol, which according to Dr.
Shetty may have “exacerbated” her seizure disorder (R. 206-207), but Plaintiff’s blood-
4. The pre-2006 seizure activity has been given as background. The seizures prior to January 20, 2006 are subject to
another claim and “are considered res judicata as there is a prior decision covering that period.” (R. 9).
6
alcohol level was “undetectable.” (R. 227). However, Dr. Shetty noted that Plaintiff’s
Dilantin level was elevated to an un-therapeutic level of 31.1 ug/ml. (R. 206, 232).
Plaintiff’s third post-2006 seizure of record took place on April 11, 2008 in the
Aliquippa Giant Eagle. (R. 342). On her way to the Commonwealth Medical Center Plaintiff
“vomited [a] ‘blood clot’.” (R. 343). Plaintiff’s medical records for this incident state that her
Dilantin levels were less than 0.4 ug/ml, which is an un-therapeutic level to treat her seizures.
(R. 346). Plaintiff stated that she believed she had been taking her medication, but was not
entirely sure. (R. 346).
Her fourth post-2006 seizure of record took place on January 6, 2009, again at
Giant Eagle. (R. 432). This seizure lasted about twenty-to-thirty (20-30) seconds and was
witnessed by other customers. (R. 432). Plaintiff’s medical records reflect that the seizure
may have again been caused by sub-therapeutic levels of her medication. (R. 438).
In a letter to Dr. Shetty, dated November 2, 2009, Dr. Carey makes the assessment
that Plaintiff “has a poorly controlled partial onset seizure disorder.” (R. 464). Similarly, Dr.
Carey’s letter dated December 9, 2009 to Dr. Shetty contains an assessment that Plaintiff’s
seizure disorder is “not fully controlled on medication.” (R. 454). This letter also details that
Plaintiff informed Dr. Carey that she suffered a seizure two days after Thanksgiving 2009.
(R. 454). Dr. Carey wrote that Plaintiff “felt herself getting dizzy,” “she could not think
properly during the spell but did not lose total consciousness,” and “electrodiagnostic studies
7
. . . revealed the presence of a sensory polyneuropathy.” (R. 454). Dr. Carey also noted that
Plaintiff’s Dilantin level was a therapeutic 11 ug/ml a week prior to her seizure. 5 (R. 454).
The record reflects that Plaintiff can perform physical activities with little problem.
Plaintiff states that she can lift, stand, and walk for extended periods of time. (R. 160-161).
However, Plaintiff testified that when she has a seizure she become confused, disoriented,
and extremely tired which makes her sleep for extended periods of time after each episode.
(R. 51). It should also be noted that EEG’s and MRI’s performed on Plaintiff throughout her
duration of treatment and hospitalizations document no significant or relevant problems. (R.
429).
B.
Procedural History
Plaintiff initially filed applications for SSI and DIB on December 28, 2007, in
which she claimed total disability since January 20, 2006. (R. 9). An administrative hearing
was held on December 30, 2009 (R. 19) before Administrative Law Judge David J. Kozma
(“ALJ”). (R. 14). Plaintiff was represented by counsel and testified at the hearing. Samuel
Edelmann, an impartial vocational expert (“VE”), also testified at the hearing. (R. 54-56).
On January 29, 2010, the ALJ rendered an unfavorable decision to Plaintiff, in
which he found that Plaintiff retained the ability to perform a wide range of light exertional
activity and, therefore, was not “disabled” within the meaning of the Act. (R. 14). In
5. Plaintiff was also hospitalized during this time period in July 2005 for a burn after falling while carrying boiling
water (R. 287, 396), two times in January 2006, once for a fall while intoxicated (R. 295) and once for respiratory
distress. (R. 303). Plaintiff was also hospitalized after another fall in February 2006 (R. 221-222), and again
hospitalized in December 2006 for depression. (R. 258). In September 2006 she was involuntarily committed after
threatening to kill herself and an unborn grandchild. (R. 249, 273).
8
reaching that conclusion, the ALJ stated that the four post-2006 seizures within her medical
records “is the extent of her seizure activity.” (R. 11). He further stated, “[t]here is no
evidence that the claimant’s seizures are uncontrolled.” (R. 12). Similarly, the ALJ rejected
the opinions of Dr. Shetty and Dr. Carey that Plaintiff was permanently disabled, stating that
their opinions were “inconsistent with the medical record.” (R. 12).
Each of these
statements was made by the ALJ without further explanation. The ALJ made no reference to
the two (2) letters sent by Dr. Carey that Plaintiff’s seizure disorder is not controlled. The
ALJ’s decision became the final decision of the Commissioner on August 23, 2010, when the
Appeals Council denied Plaintiff’s request to review the decision. (R. 1-3).
On October 10, 2010, Plaintiff filed her Complaint in this Court in which she seeks
judicial review of the decision of the ALJ. The parties have filed cross-motions for summary
judgment. Plaintiff contends that the ALJ erred in ignoring the opinion of the VE, Plaintiff’s
testimony, and credible medical evidence that the Plaintiff’s seizures were not medically
controlled. The Commissioner contends that the decision of the ALJ should be affirmed as it
is supported by substantial evidence.
III.
Legal Analysis
A.
Standard of Review
The Act limits judicial review of disability claims to the Commissioner's final
decision. 42 U.S.C. §§ 405(g)/1383(c)(3). If the Commissioner's finding is supported by
substantial evidence, it is conclusive and must be affirmed by the Court. 42 U.S.C. §
405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Supreme Court has
9
defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971); Capato
v. Commissioner of Social Security, 631 F.3d 626, 628 (3d Cir. 2010) (internal citation
omitted). It consists of more than a scintilla of evidence, but less than a preponderance.
Thomas v. Commissioner of Social Security, 625 F.3d 798 (3d Cir. 2010).
As set forth in the Act and applicable case law, this Court may not undertake a de
novo review of the Commissioner’s decision or re-weigh the evidence of record. Monsour
Medical Center v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986), cert. denied., 482 U.S. 905
(1987). The Court must simply review the findings and conclusions of the ALJ to determine
whether they are supported by substantial evidence. 42 U.S.C. § 405(g); Schaudeck v.
Comm’n of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999).
B.
Discussion
When resolving the issue of whether an adult claimant is or is not disabled, the
Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520 and
416.920 (1995). This process requires the Commissioner to consider, in sequence, whether
a claimant (1) is working, (2) has a severe impairment, (3) has an impairment that meets or
equals the requirements of a listed impairment, (4) can return to his or her past relevant
work, and (5) if not, whether he or she can perform other work. See 42 U.S.C. § 404.1520;
Newell v. Commissioner of Social Security, 347 F.3d 541, 545-46 (3d Cir. 2003) (quoting
Burnett v. Commissioner of Social Security, 220 F.3d 112, 118-19 (3d Cir. 2000)).
10
To qualify for disability benefits under the Act, a claimant must demonstrate that
there is some "medically determinable basis for an impairment that prevents him or her from
engaging in any substantial gainful activity for a statutory twelve-month period."
Fargnoli v. Halter, 247 F.2d 34, 38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.C.
§ 423 (d)(1) (1982).
This may be done in two ways:
(1) by introducing medical evidence that the claimant is disabled per se because
he or she suffers from one or more of a number of serious impairments delineated
in 20 C.F.R. Regulations No. 4, Subpt. P, Appendix 1. See Heckler v. Campbell,
461 U.S. 458 (1983); Newell, 347 F.3d at 545-46; Jones v. Barnhart, 364 F.3d
501, 503 (3d Cir. 2004); or,
(2) in the event that claimant suffers from a less severe impairment, by
demonstrating that he or she is nevertheless unable to engage in "any other kind
of substantial gainful work which exists in the national economy . . . ." Campbell,
461 U.S. at 461 (citing 42 U.S.C. § 423 (d)(2)(A)).
In order to prove disability under the second method, a claimant must first
demonstrate the existence of a medically determinable disability that precludes plaintiff
from returning to his or her former job. Newell, 347 F.3d at 545-46; Jones, 364 F.3d at 503.
Once it is shown that claimant is unable to resume his or her previous employment, the
burden shifts to the Commissioner to prove that, given claimant’s mental or physical
limitations, age, education and work experience, he or she is able to perform substantial
gainful activity in jobs available in the national economy. Rutherford v. Barnhart, 399 F.3d
546, 551 (3d Cir. 2005); Newell, 347 F.3d at 546; Jones, 364 F.3d at 503; Burns v.
Barnhart, 312 F.3d 113, 119 (3d Cir. 2002).
11
Where a claimant has multiple impairments which may not individually reach the
level of severity necessary to qualify any one impairment for Listed Impairment status, the
Commissioner nevertheless must consider all of the impairments in combination to
determine whether, collectively, they meet or equal the severity of a Listed Impairment.
Diaz v. Commissioner of Social Security, 577 F.2d 500, 502 (3d Cir. 2010); 42 U.S.C. §
423(d)(2)(C) (“in determining an individual’s eligibility for benefits, the Secretary shall
consider the combined effect of all of the individual’s impairments without regard to
whether any such impairment, if considered separately, would be of such severity.”)
In making his determination, the ALJ first concluded that “the [Plaintiff] has not
engaged in substantial gainful activity since January 20, 2006, the alleged onset date.” (R.
11). Although Plaintiff had held a job at the Salvation Army for eight (8) months during
2007, this employment was not considered substantial gainful activity. 6 (R. 11). The ALJ
next concluded that Plaintiff has a seizure disorder, which is a severe impairment. (R. 11).
Furthermore, the ALJ determined that “the [Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals one of the listing impairments in
20 CFR Part 404, Subpart P, Appendix 1” because, the ALJ stated, “[t]here is no evidence
that the claimant’s seizures are uncontrolled.” (R. 12).
6. The ALJ determined that although Plaintiff was working after January 2006, her work at the Salvation Army did
not constitute substantial gainful activity, but rather was “indicative of her ability to work.” (R. 12). However,
Plaintiff also worked at Jerry’s until May 2007, which falls within the time period Plaintiff alleges she was disabled.
(R. 201). The ALJ makes no reference to this employment in regards to whether this was a substantial gainful
activity.
12
Subsequently, the ALJ determined that Plaintiff has the residual functional capacity
to perform at a full range of exertional levels, but with certain non-exertional limitations such
as being exposed to heights, climbing, or dangerous machinery. (R. 12). The ALJ considered
the July 2, 2008 assessment of Plaintiff by Dr. Newman, who concluded that although
Plaintiff has a seizure disorder, “she remained able to understand, retain, and follow
instructions, interact with others, and perform tasks.” (R. 12). The ALJ also rejected both
testimony and statements from the Plaintiff, stating that her statements are “not credible to the
extent they are inconsistent with the . . . residual functional capacity assessment.” (R. 13).
Similarly, the ALJ rejected without explanation the opinions of Dr. Shetty and Dr. Carey
because their opinions were “inconsistent with the medical record.” (R. 12).
Based upon the testimony of the VE that Plaintiff could perform any previous
employment, as well as other employment if her seizures were controlled, the ALJ concluded
that, based upon Plaintiff’s age, education, work experience, and residual functional capacity,
there are certain jobs within the national economy which she can perform so long as the
proper seizure precautions are taken. (R. 14). Thus, having found that “[t]here is no evidence
that the [Plaintiff’s] seizures are uncontrolled[,]” the ALJ concluded that Plaintiff can
perform these jobs and is not disabled. (R. 12, 14). However, in this case it is unclear
whether the ALJ determined that Plaintiff was not disabled within the meaning of the Act at
the fourth or the fifth step of the sequential evaluation process. 7
7. In paragraph six (6) of the ALJ’s decision, he states that “[t]he claimant is unable to perform any past relevant
work[.]” The ALJ lists the Plaintiff’s past relevant work as a hotel cleaner, sales attendant, or lottery ticket clerk (R.
13
There is a discontinuity between the VE’s testimony and the ALJ’s determination.
The VE testified that if Plaintiff’s seizure disorder was controlled, she could perform all the
jobs she had in the past. (R. 55). The ALJ stated, in his opinion, that “[t]here is no evidence
that the [Plaintiff’s] seizures are uncontrolled.” (R. 12). In other words, the ALJ believed that
her seizures are controlled. However, the ALJ determined in paragraph six (6) of his opinion
that Plaintiff is “unable to perform any past relevant work[,]” which is in direct contradiction
of the VE’s testimony. Not only did the ALJ fail to explain how he implemented the VE’s
testimony in reaching his determination, but the ALJ also incorrectly applied the VE’s
testimony regarding Plaintiff’s ability to perform her past work. (R. 13-14).
After a careful review of the entire record, the Court finds that the ALJ failed to
consider and/or explain his rejection of relevant, probative evidence, specifically employment
assessment forms, which state that Plaintiff is permanently disabled, from Dr. Shetty, one of
Plaintiff’s consulting physicians who examined her on numerous occasions (R. 449-450), and
Dr. Carey, Plaintiff’s treating physician and neurologist (R. 451-452); a letter from Dr. Carey
to Dr. Shetty, dated November 2, 2009, stating that Plaintiff “has a poorly controlled partial
onset seizure disorder[,]” (R. 463-464); and another letter from Dr. Carey dated December 9,
2009, stating that Plaintiff “has a seizure disorder that is not fully controlled on medication.”
13). Furthermore, in paragraph ten (10) the ALJ states that “[t]he vocational expert testified that given all of these
factors the individual would be able to perform the requirements of representative occupations such as handler in a
hospital (light, unskilled); counter clerk at a dry cleaner (medium, unskilled); cashier (light, unskilled); and
Salvation Army Worker (light, unskilled).” (R. 13-14). However, the jobs listed by the ALJ in paragraph six (6),
Plaintiff’s past relevant work, are the jobs which the VE testified that the Plaintiff could perform if her seizures were
controlled by medication. (R. 55). These jobs are not the Plaintiff’s past relevant work. Rather, the jobs listed in
paragraph ten (10), pertaining to the jobs that exist in the national economy, are actually the Plaintiff’s past relevant
work. (R. 13).
14
(R. 454). Because the ALJ determined that there was “no evidence” in the record that
Plaintiff’s seizures were uncontrolled (R. 12), and either did not consider and/or did not
explain his consideration of the above mentioned documents, this matter will be remanded to
the Commissioner for reconsideration, rehearing, and/or further proceedings consistent with
this Memorandum Opinion. 42 U.S.C. § 405(g); Benton v. Bowen, 820 F.2d 85, 89 (3d Cir.
1987).
1. The ALJ rejected the Plaintiff’s treating physicians’ opinions, without proper
explanation as to why the opinions were not considered.
Plaintiff argues that the ALJ ignored the opinions of two treating physicians which
contradict the ALJ’s determination that the Plaintiff is not disabled within the meaning of the
Act. Specifically, Plaintiff argues that the ALJ did not consider from Dr. Carey’s
documented assessments that Plaintiff’s seizure disorder is not medically controlled (R. 454).
Plaintiff further contends that the ALJ did not properly consider the opinions of Dr. Carey
and Dr. Shetty, each of whom personally examined Plaintiff and found that Plaintiff is
permanently disabled. (R. 449-452).
On the other hand, the Commissioner argues that the decision by the ALJ should
stand and that the Plaintiff is not disabled. The Commissioner contends that the opinion of
the Plaintiff’s treating physician is not dispositive of the issue of whether the Plaintiff is
disabled. The Commissioner further argues that the opinions of Dr. Shetty and Dr. Carey that
15
Plaintiff is disabled and that her seizure disorder is not controlled, were properly given no
weight because the documents containing these opinions were check-off boxes and fill-inthe-blanks. The Commissioner argues that the doctor’s opinions were properly rejected
because they were not supported by the Plaintiff’s medical records and the doctors failed to
explain why the Plaintiff’s seizure disorder prevented her from working.
The United States Court of Appeals for the Third Circuit has found that “the
medical judgment of a treating physician can be rejected only on the basis of contradictory
medical evidence.” Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988). Moreover,
“[a]n ALJ ‘may not reject [a physician’s findings] unless he first weighs them against other
relevant evidence and explains why certain evidence has been accepted and why other
evidence has been rejected.’” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (brackets
in original) (quoting Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983)). When the opinion
of a treating physician, or any other relevant evidence, is rejected on the basis of
contradictory medical evidence, the ALJ must provide an explanation why such evidence has
been rejected. See Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981); see e.g. Kennedy v.
Richardson, 454 F.2d 376 (3d Cir. 1972). Such an explanation is required “so that a
reviewing court can determine whether the reasons for rejection were improper.” Cotter, 642
F.2d at 707.
Both Dr. Shetty and Dr. Carey prepared “employment assessment forms,” in which
they each indicated that Plaintiff was “permanently disabled” by checking the appropriate
box and signing the form. (R. 449-452). Although the opinion of a doctor who has treated the
16
Plaintiff must be given great weight, “[f]orm reports in which a physician’s obligation is only
to check a box or fill in a blank are weak evidence [of actual disability] at best.” Mason, 994
F.2d at 1065 (brackets added).
However, these forms are supported by two (2) letters from Dr. Carey to Dr. Shetty
(R. 454, 463). In his first letter to Dr. Shetty, dated November 2, 2009, Dr. Carey stated that
Plaintiff “has a poorly controlled partial onset seizure disorder.” (R. 464). In another letter to
Dr. Shetty dated December 9, 2009, Dr. Carey concluded that Plaintiff’s seizure disorder “is
not fully controlled on medication.” (R. 454).
The ALJ makes no reference to these letters or to the opinions of Dr. Carey and Dr.
Shetty that Plaintiff is permanently disabled and that her seizure disorder is not controlled by
medication. Furthermore, the ALJ did not point to any contrary medical evidence that would
suggest Plaintiff is not permanently disabled or that her seizure disorder is controlled. The
full extent of the ALJ’s explanation for disregarding the opinions of the two (2) doctors is
that “the opinions contained in Exhibits 16F and 17F as inconsistent with the medical
record.” (R. 12). Without any explanation as to why the ALJ rejected these medical opinions,
this Court is unable to determine whether the consideration or rejection was proper. See
Cotter, 642 F.2d at 707.
17
2. The ALJ failed to analyze the complete record of Plaintiff’s seizure activity.
The ALJ failed to analyze the complete record of Plaintiff’s seizure activity. He
further failed to explain his rationale in rejecting relevant evidence of record when making
his determinations. Specifically, the ALJ did not explain his rationale when he rejected
relevant evidence pertaining to the extent of Plaintiff’s seizure activity and that Plaintiff’s
seizure disorder is controlled.
The ALJ stated Plaintiff’s seizures on January 14, 2006, November 27, 2007, April
11, 2008, and January 6, 2009 are “the extent of [Plaintiff’s] seizure activity.” (R. 11).
However, upon further review of the record, there are a number of documents in the record
which may lead one to determine that the ALJ’s statement is not supported by substantial
evidence. In fact, it is manifestly incorrect that the four post-2006 seizures represent “the
extent of [Plaintiff’s] seizure activity.” (R. 11). Not only does Plaintiff have a family history
of seizures and a personal history of far more than four seizures, but the record details a
number of instances where Plaintiff experienced seizures prior to 2006. (R. 278-279, 404,
406, 421-422). The ALJ made no references to these instances, and did not explain his
reasoning in disregarding these recorded instances of seizures. The Court recognizes that the
seizures prior to 2006 are subject to a prior decision; however these seizures are additional
examples of Plaintiff’s seizure activity outside of the ALJ’s assessment. The ALJ is required
to provide some explanation for disregarding this relevant evidence in order for the Court to
18
have the ability to determine whether proper consideration was given to the record evidence
and the ALJ’s assessment of Plaintiff’s testimony. Id.
The ALJ also determined that Plaintiff’s statements and testimony “concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity assessment.” (R. 13).
However, this again is the full extent of the ALJ’s explanation for rejecting Plaintiff’s
statements and testimony as evidence of her seizure activity. Examples of such statements in
the record include that Plaintiff told Dr. Carey that she experienced a seizure two days after
Thanksgiving 2009. (R. 454). Plaintiff has also stated on numerous occasions that she
experiences seizures regularly, even while medicated. (R. 49-54, 394, 398, 449-453). This
evidence shows Plaintiff’s seizure activity is not limited to the four (4) instances which the
ALJ determined to be the “extent of [Plaintiff’s] seizure activity.” (R. 11). When
disregarding this evidence, the ALJ must provide the Court with an explanation as to why the
evidence was not considered and/or rejected so that the Court can determine whether proper
consideration was given to the record evidence. Id. As stated above, the record contains
evidence which supports Plaintiff’s claims, regarding the extent of her seizure activity, which
was not addressed by the ALJ.
The ALJ further stated that “there is no evidence that the [Plaintiff’s] seizures are
uncontrolled.” (R. 12). Again, the ALJ did not provide any explanation for this conclusory
determination that Plaintiff’s seizure disorder is controlled. The Commissioner argues that
Plaintiff’s medical records show that “her seizures may be related to her alcohol and/or drug
19
use.” (Defendant’s Brief at 15). There is no evidence that the ALJ adopted this rationale.
Moreover, there are a number of documents in the record which contradict the
Commissioner’s argument. For example, Plaintiff’s medical records pertaining to her
seizure which occurred on January 14, 2006, show that she had not been under the influence
of any drugs or alcohol and that her Dilantin level was at a therapeutic level of 12.2. (R. 325).
Similarly, as noted above, Plaintiff told Dr. Carey that she experienced a seizure two days
after Thanksgiving 2009. (R. 454). Dr. Carey noted that Plaintiff’s Dilantin level was at a
therapeutic level of 11 ug/ml the week prior and that “electrodiagnostic studies . . . revealed
the presence of a sensory polyneuropathy.” (R. 454). Furthermore, some of Plaintiff’s pre2006 seizure activity suggests that she tested negative for drugs or alcohol and her Dilantin
level was therapeutic. (R. 279, 286). However, the ALJ made no reference to these instances,
and did not explain his reasons for disregarding these recorded instances of seizures. These
instances display a pattern of seizure activity while Plaintiff was medicated and not under the
influence of any alcohol or drugs, as well as shed light on the credibility of Plaintiff’s
statements and testimony and the opinions of her treating physicians. Again, the ALJ is
required to provide some explanation for disregarding this relevant evidence in order for the
Court to have the ability to determine whether proper consideration was given to the record
evidence. Id.
IV.
Conclusion
In this case, the VE testified that Plaintiff could not work, and is permanently
disabled if her seizure disorder is not controlled. (R. 54). The ALJ determined that there is
20
“no evidence that the claimant’s seizures are uncontrolled.” (R. 12). In doing so the ALJ
disregarded signed documents from both Dr. Carey and Dr. Shetty stating the Plaintiff is
permanently disabled. Furthermore, the ALJ made no reference to the letters sent by Dr.
Carey, in which Dr. Carey definitively stated that it is his medical assessment that Plaintiff’s
seizure disorder is not controlled. He also minimized the actual extent of Plaintiff’s seizure
history, disregarded other instances in the record of seizure activity while Plaintiff was
medicated, and Plaintiff’s statements themselves. He did so without the requisite explanation
to allow this Court to review whether proper consideration was given to the evidence of
record. Id.
“Where there is conflicting probative evidence in the record, we recognize a
particularly acute need for an explanation of the reasoning behind the ALJ’s conclusions, and
will vacate or remand a case where such an explanation is not provided.” Fargnoli v. Halter,
247 F.3d 34, 42 (3d Cir. 2001).
When reviewing a decision of the Commissioner to deny benefits, it is not this
Court’s function to substitute its judgment for that of the Commissioner. The
Commissioner’s decision in the present case may otherwise be correct and nothing in this
Memorandum Opinion should be taken to suggest that this Court has presently concluded
otherwise. However, in the absence of sufficient indication that the ALJ considered all the
medical evidence of record, including the assessments and letters from Dr. Shetty and Dr.
Carey, the Court cannot satisfy its obligation to determine whether or not the Commissioner’s
decision is supported by substantial evidence. Accordingly, this case will be remanded to the
21
Commissioner for further consideration and/or proceedings consistent with this Memorandum
Opinion.
An appropriate Order follows.
McVerry, J.
22
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOYCE ANN HOWELL
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
02: 10-cv-1302
ORDER OF COURT
AND NOW, this _28th_ day of __June__, 2011, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, AND DECREED that:
1.
Plaintiff’s MOTION FOR SUMMARY JUDGMENT (Document No. 6) is
GRANTED. The case is remanded for further proceedings in accordance with
this Opinion.
2.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Document No 9)
is DENIED.
3.
The Clerk will docket this case as closed.
BY THE COURT:
s/Terrence F. McVerry
United States District Court Judge
23
cc:
Richard Urick
McMillen, Urick, Tocci, Fosse & Jones
2131 Brodhead Road
Aliquippa, PA 15001
Email: rurick@yourlawfirm.net
Albert Schollaert
United States Attorney’s Office
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Email: albert.schollaert@usdoj.gov
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?