IRVIN v. ASTRUE
Filing
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ORDER granting 9 Motion for Summary Judgment; denying 11 Motion for Summary Judgment; and remanding for further administrative proceedings consistent with the Opinion. Signed by Judge Donetta W. Ambrose on 6/18/13. (slh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHANEL R. IRVIN,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 12-843
AMBROSE, Senior District Judge
OPINION
and
ORDER OF COURT
Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 9 and
11). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 10, 12 and 13). After
careful consideration of the submissions of the parties, and based on my Opinion set forth
below, I am denying Defendant=s Motion for Summary Judgment (ECF No. 11), granting
Plaintiff=s Motion for Summary Judgment (ECF No. 9), and remanding for further proceedings.
I. BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security (ACommissioner@) denying her application for supplemental security income benefits
pursuant to the Social Security Act (AAct@). On March 30, 2010, Plaintiff filed an application
alleging that her disability began on March 30, 2010.
Administrative Law Judge (“ALJ”) David
G. Hatfield, held a hearing on March 21, 2011, during which time a vocational expert, George
Starasta, appeared and testified.
On April 28, 2011, the ALJ found that Plaintiff was not
disabled under the Act. (ECF No. 6-2, pp. 15-25). After exhausting all of her administrative
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Carolyn W. Colvin became acting Commissioner of Social Security on February 14, 2013, replacing
Michael J. Astrue.
remedies thereafter, Plaintiff filed this action.
The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 9 and 11).
The issues are now ripe for review.
II. LEGAL ANALYSIS
A.
STANDARD AND SCOPE OF REVIEW
The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner=s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as Amore than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.@ Ventura v. Shalala, 55
F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971).
Additionally, the Commissioner=s findings of fact, if supported by substantial evidence, are
conclusive. 42 U.S.C. '405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A
district court cannot conduct 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, 1190-91 (3d Cir.
1986); Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of fact
are supported by substantial evidence, a court is bound by those findings, even if the court
would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999). To determine whether a finding is supported by substantial evidence, however, the
district court must review the record as a whole. See, 5 U.S.C. '706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of at least 12 months. 42 U.S.C. '423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use
when evaluating the disabled status of each claimant. 20 C.F.R. '404.1520(a). The ALJ must
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determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant=s impairments
prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform any other work which exists in the
national economy, in light of his age, education, work experience and residual functional
capacity. 20 C.F.R. '404.1520. The claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous employment (steps 1-4).
Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof shifts
to the Commissioner to show that the claimant can engage in alternative substantial gainful
activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the
decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745
F.2d 210, 221 (3d Cir. 1984).
B.
DISCUSSION
1.
Weight given to medical opinions of Plaintiff’s treating physicians and
consultative physician
Plaintiff argues that there is no medical report indicating that Plaintiff was not disabled
and as such the ALJ erred in substituting his own judgment for the uncontroverted medical
opinions. (ECF No. 10, pp. 10-12). Specifically, her first argument is that the ALJ erred in not
accepting the opinion of Dr. Campanella, her treating urologist, that Plaintiff was disabled from
January 22, 2010 through December 31, 2010 and in failing to give his medical opinions the
proper weight. (ECF No. 10, pp. 10-12). In opposition, the Commissioner argues that the ALJ
is not required to accept a statement by a medical source that a patient is “disabled” as that
determination is reserved for the ALJ. (ECF No. 12, p. 11). There is no doubt that this general
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assertion by Defendant is correct. 20 C.F.R. 20 C.F.R. ' 416.927(d)(1). It is not dispositive of
the issue, however.
An ALJ does not need to accept the ultimate conclusion of disability from a medical
professional, but he cannot ignore the medical evidence and opinions of that doctor or substitute
his opinion over the medical evidence. If a treating physician’s medical opinions and diagnoses
are not inconsistent with other substantial evidence and are well-supported by medically
acceptable clinical and laboratory diagnostic techniques, a treating physician’s medical opinions
and diagnoses are to be given controlling weight. 20 C.F.R. §416.927(c)(2). “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. When the treating source
has seen you a number of times and long enough to have obtained a longitudinal picture of your
impairment, we will give the source's opinion more weight than we would give it if it were from a
nontreating source.”
Id. at §416.927(c)(2)(i).
In explaining the weight given to a medical
source, the ALJ must give “good reasons” for his/her determination.
SSR 96-2p (under
Explanation of the Weight Given to a Treating Source’s Medical Opinion). Furthermore,
Adjudicators must remember that a finding that a treating source medical opinion
is not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with the other substantial evidence in the case
record means only that the opinion is not entitled to “controlling weight,” not that
the opinion should be rejected. Treating source medical opinions are still entitled
to deference and must be weighed using all of the factors provided in 20 CFR
404.1527 and 416.927. In many cases, a treating source's medical opinion will be
entitled to the greatest weight and should be adopted, even if it does not meet
the test for controlling weight.
Id. (under When a Treating Source’s Medical Opinion is not Entitled to Controlling Weight).
In this case, the ALJ gave Plaintiff’s treating urological specialist, Dr. Campanella’s,
opinions “little weight” for two reasons. First, he gave Dr. Campanella’s opinions little weight
because Dr. Campanella expressed an opinion on the ultimate determination of disability. (ECF
No. 6-2, pp. 9-10). As set forth above, that is not a reason to give the underlying medical
opinions more or less weight.
Additionally, the ALJ gave Dr. Campanella’s opinions “little
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weight” because the Plaintiff’s “reported activities…indicate that her impairments do not rise to
the level of being ‘disabling.” (ECF No. 6-2, p. 10). As set forth above, an ALJ is to weigh the
medical evidence giving due regard to the examining relationship, treatment relationship (length
of the treatment relationship and frequency of examinations), supportability, consistency,
specialization, and other factors. 20 C.F.R. §416.927. The ALJ here did not do that. He does
not cite to one other piece of medical evidence that does not support Dr. Campanella’s opinions.
As such, I agree with Plaintiff and find that the ALJ failed to properly weigh the opinions of Dr.
Campanella. Upon remand, the ALJ shall revisit the opinions of Dr. Campanella and weigh
those opinions consistent with 20 C.F.R. §416.927.
Plaintiff next argues that the ALJ did not mention the notes of Dr. Razzak’s report. (ECF
No.10, p. 11. After a review of the record, I disagree. The ALJ did mention Dr. Razzak’s report.
(ECF No. 6-2, p. 21). Thus, I find no error in this regard.
Plaintiff also complains that the ALJ failed to properly weigh the opinions of Dr. Houk, a
state disability agency consultative psychologist. The ALJ gave Dr. Houk’s opinion little weight.
(ECF No. 6-2, p. 23). Based on a review of the record, however, I find that there is substantial
evidence to support the ALJ’s decision to give less weight to Dr. Houk’s opinion. See, ECF No.
6-15, pp. 59-62 and ECF No. 6-8, pp. 29-42. Thus, I find no error in this regard.
Therefore, I am remanding this case for the ALJ to perform a proper analysis of Dr.
Campanella’s records and opinions.
2.
Plaintiff’s residual functional capacity (“RFC”)
Plaintiff argues that the ALJ erred in finding that she had the RFC to perform medium
work because there is no evidence to support the same. (ECF No. 10, pp. 12-18). I agree. To
perform medium work, an individual must be able to engage in work involving lifting no more
than 50 pounds with frequent lifting or carrying of objects up to 25 pounds. 20 C.F.R. §416.967.
Additionally, medium work “requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm controls.” Id. This record contains
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no statements of physical capacities from any examining source.
While a medical source
statement of claimant’s ability to perform work-related physical activities form was sent to Dr.
Razzak, he declined to fill it out because, at the time, Plaintiff had seen Dr. Razzak only one
time. ((ECF No. 6-8, pp. 25-26). This form was not sought/completed by any other doctor (Dr.
Campanella or Dr. Leighton, Plaintiff’s PCP) nor was it sent back to Dr. Razzak at a later date
after he became her pain management treating physician. As a result, there is no medical
opinion as to the amount or degree of lifting, carrying, standing, walking, sitting, pushing, pulling,
postural activities, or other physical functions the Plaintiff can perform. The only assessment is
Plaintiff’s own self-assessment which does not rise to the level of medium work. See, ECF No.
6-6, pp. 17-24.
Thus, I find there is not enough competent evidence of record for a
determination of Plaintiff’s physical RFC. See generally Lauer v. Apfel, 245 F.3d 700, 704 (8th
Cir.2001) (because “a claimant's [RFC] is a medical question,” ALJ must “consider at least some
supporting evidence from a [medical] professional” in rendering his decision) (citations and
internal quotations omitted); Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir.1995) (“[a]bsent some
medical evidence of [the claimant's] RFC at the time of the hearing, the Secretary could not
meet [his] burden [of] ... demonstrat[ing] that [the claimant] was capable of performing the full
range of light work”).
Consequently, further development of the administrative record is
required.
Accordingly, this case will be remanded for the development of medical evidence
regarding Plaintiff’s physical RFC as it relates to her interstitial cystitis. Once the additional
medical evidence has been obtained, Plaintiff’s disability determination should be revisited
consistent with the findings above.
3.
Testimony of the vocational expert
Plaintiff argues that the ALJ improperly disregarded the testimony of the vocational
expert and relied on an incomplete hypothetical question. (ECF No. 10, p. 18). Based on my
ruling regarding Plaintiff’s RFC, the ALJ may likely be required to conduct further examination of
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a vocational expert. As a result, I decline to determine whether the ALJ improperly disregarded
the testimony of the vocational expert at this time.
4.
Plaintiff’s subjective complaints of pain
Plaintiff’s last argument is that the ALJ improperly evaluated and discredited her
subjective complaints of pain. (ECF No. 10, pp. 18-20).
I agree. In discrediting Plaintiff’s
testimony regarding subjective complaints of pain, the ALJ begins by citing to Dr. Razzak’s
declination to fill out the physical capacity form. (ECF No. 6-2, p. 24). He uses Dr. Razzak’s
declination as a strike against Plaintiff’s credibility because he was “claimant’s treating pain
management specialist.” (ECF No. 6-2, p. 24). I am baffled by this. To begin with, Dr. Razzak
was not her treating physician at that point. She had only seen Dr. Razzak one time when he
was asked to fill out the form. Thus, he was no more her treating specialist than a state agency
reviewer or a consultative examiner.
Furthermore, Dr. Razzak simply declined to fill out the form for the stated reason that he
only saw Plaintiff one time. Yet, somehow, the ALJ finds it “worth noting” when assessing
Plaintiff’s credibility. Id. Dr. Razzak’s declination to fill out a form has no bearing one way or the
other on Plaintiff’s credibility. As a result, I find the ALJ’s use of this declination in assessing
Plaintiff’s credibility as to her complaints of pain to be in error.
Then the ALJ states that “[t]here was also some question raised as to the claimant’s
credibility in notes from the hospital emergency room. (Exhibit 18F/8).” (ECF No. 6-2, p. 24).
Exhibit 18F/8 provides a section under the heading “Notes,” and states:
“At discharge pt
ambulated out of room without any difficulty but when she had to urinate she went in the room
on the bedside commode because she said that her pain was too great to walk to the
bathroom.” (ECF No. 6-14, p. 9). Again, I am a bit baffled by the ALJ’s willingness to ascribe
this note to Plaintiff’s credibility. The ALJ does not know the purpose of this note. It is very
possible that this note was made for the purpose of noting the relief from pain that Plaintiff
experienced upon discharge, especially since the chart indicates that Plaintiff was administered
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various medications throughout her admission and prior to her departure. (ECF No. 6-14, p. 4).
As a result, I find the ALJ’s use of this note in assessing Plaintiff’s credibility as to her
complaints of pain to be in error.
The only other reason given for discrediting Plaintiff’s credibility as to her complaints of
pain is that “the claimant has not consistently followed her doctors’ treatment advice. (Exhibit
20F/4, 17; 22F).” (ECF No. 6-2, p. 24). At Exhibit 20F/4, 17, Plaintiff was advised by Dr.
Razzak to stop smoking (ECF No. 6-14, pp. 61, 74) which the Plaintiff has not done. Again, I
am not sure how her failure to follow the advice to quit smoking affects her credibility. I have
reviewed Exhibit 22F, however, I am unable to determine what advice Plaintiff has failed to
follow. (ECF No. 6-15, pp. 12-19).
Thus, I am unsure how this bears on Plaintiff’s credibility.
As a result, I find the ALJ’s attempt to use the alleged failure to follow her doctors’ treatment
advice in assessing Plaintiff’s credibility as to her complaints of pain to be in error. An “ALJ can
reject plaintiff's subjective complaints on the basis that plaintiff is not credible, as long as the
underlying reasoning for such a finding is explained and supported by the record.” Duncan v.
Sullivan, 786 F.Supp. 466, 470 (E.D.Pa. 1992). That was not done in this case. Therefore, on
remand, the ALJ is ordered to revisit his assessment of Plaintiff’s credibility as to her complaints
of pain.
An appropriate order shall follow.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHANEL R. IRVIN,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
CAROLYN W. COLVIN,2
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Civil Action No. 12-843
AMBROSE, Senior District Judge
ORDER OF COURT
THEREFORE, this 18th day of June, 2013, it is ordered that the decision of the ALJ is
affirmed and Plaintiff=s Motion for Summary Judgment (ECF No. 9) is granted, Defendant=s
Motion for Summary Judgment (ECF No. 111) is denied, and this case is remanded forthwith for
further administrative proceedings consistent with the foregoing Opinion.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge
2
Carolyn W. Colvin became acting Commissioner of Social Security on February 14, 2013, replacing
Michael J. Astrue.
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