EZELL v. COLVIN
Filing
17
ORDER granting 9 Motion for Summary Judgment; denying 15 Motion for Summary Judgment. Remanding matter for further proceedings consistent with Opinion. Signed by Judge Donetta W. Ambrose on 7/21/16. (ask)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DUANE EZELL, JR.
)
)
No. 15-1157
v.
CAROLYN W. COLVIN
OPINION AND ORDER
SYNOPSIS
Plaintiff filed an application for social security disability benefits, based on physical
impairments. Pertinent here, those impairments include transposition of the great arteries, which
is a congenital heart condition, and heart failure. Plaintiff’s claim was denied initially and upon
hearing before an administrative law judge (“ALJ”). The Appeals Council corrected one aspect
of the residual functional capacity assessment (“RFC”), but affirmed that Plaintiff was not
disabled. This appeal followed. Before the Court are the parties’ Cross-Motions for Summary
Judgment. For the following reasons, Plaintiff’s Motion will be granted, and Defendant’s
denied.
OPINION
I.
STANDARD OF REVIEW
Judicial review of the Commissioner's final decisions on disability claims is provided by
statute. 42 U.S.C. §§ 405(g) 6 and 1383(c)(3)7. Section 405(g) permits a district court to review
the transcripts and records upon which a determination of the Commissioner is based, and the
court will review the record as a whole. See 5 U.S.C. §706. When reviewing a decision, the
district court's role is limited to determining whether the record contains substantial evidence to
support an ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).
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Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as
adequate" to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). If the ALJ's
findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g);
Richardson, 402 U.S. at 390.
A district court cannot conduct a de novo review of the Commissioner's decision, or reweigh the evidence of record; the court can only judge the propriety of the decision with
reference to the grounds invoked by the Commissioner when the decision was rendered. Palmer
v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196 - 97,
67 S. Ct. 1575, 91 L. Ed. 1995 (1947). Otherwise stated, “I may not weigh the evidence or
substitute my own conclusion for that of the ALJ. I must defer to the ALJ's evaluation of
evidence, assessment of the credibility of witnesses, and reconciliation of conflicting expert
opinions. If the ALJ's findings of fact are supported by substantial evidence, I am bound by those
findings, even if I would have decided the factual inquiry differently.” Brunson v. Astrue, 2011
U.S. Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted).
II.
THE PARTIES’ MOTIONS
Plaintiff contends that Defendant failed to consider the opinion of Dr. Cook, Plaintiff’s
treating cardiologist. In particular, he focuses on the ALJ’s rejection of Dr. Cook’s opinion
regarding Plaintiff’s need for frequent breaks.
The opinion of a treating physician is entitled to controlling weight if it is not inconsistent
with other substantial evidence of record. 20 C.F.R. § 416.927(c)(2). If a treating physician's
opinion "conflicts with that of a non-treating, non-examining physician, the ALJ may choose
whom to credit but 'cannot reject evidence for no reason or for the wrong reason.'" Grogan v.
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Comm'r of Soc. Sec., 459 Fed. Appx. 132, 137 (3d Cir. 2012). Thus, an ALJ is entitled to
decline to give controlling weight to a treating physician’s opinion, when it is inconsistent
internally or with other evidence of record. If the ALJ determines that the opinion is not entitled
to controlling weight, it is appropriate to evaluate and weigh it against other evidence of record.
See Money v. Barnhart, 91 Fed. Appx. 210, 213 (3d Cir. 2004); DeRohn v. Barnhart, 98 Fed.
Appx. 137 (3d Cir. 2004). However, “minor inconsistencies in a physician's opinion do not
constitute a sufficient reason to reject it.” Nash v. Colvin, 2015 U.S. Dist. LEXIS 131782, at *11
(C.D. Cal. Sept. 29, 2015). Otherwise stated, a “doctors’ [sic] longitudinal picture of Plaintiff's
medical impairments simply cannot be rejected because of minor inconsistencies.” Desantis v.
Comm'r of Soc. Sec., 24 F. Supp. 3d 701, 709 (S.D. Ohio 2014). Instead, in order to reject a
treating physician's opinion outright, contradictory medical evidence is required. Such an
opinion may not be rejected based on the ALJ’s speculation or lay opinion. Rivera v.
Commissioner, 164 Fed. Appx. 260, 264 (3d Cir. 2006).
On September 24, 2012, Dr. Cook completed a Release to Return to Work Form. On that
form, he checked the box indicating that Plaintiff could return to medium work, defined on the
form as maximum lifting of up to 50 lbs., frequent lifting/carrying of up to 25 lbs., and frequent
standing/walking. 1 Dr. Cook more specifically indicated that in a work shift, Plaintiff could
frequently lift/carry and push/pull up to 20 lbs., and occasionally lift/carry and push/pull between
21 and 100 lbs. That form also indicated that Plaintiff could sit, stand, or walk for up to 8 hours,
“with breaks.”2
1
The form’s description of Medium work was the maximum level that was roughly equivalent to the limitations that
Dr. Cook noted more specifically elsewhere on the form. The next level, Heavy Work, was defined as involving
maximum lifting/carrying of up to 100 lbs., but frequent lifting/carrying of 50 lbs.
2
On December 16, 2013, Dr. Cook signed a Pennsylvania Department of Welfare form stating that Plaintiff could
work part time, which also noted the need for frequent breaks.
3
On December 12, 2012, Dr. Cook wrote a letter stating the preference that Plaintiff work
no more than 6 hours at a time, but that “he should have frequent breaks throughout the day” if
he were required to work an eight-hour shift. The letter further stated that Plaintiff should “lift
no more than 20 lbs but if necessary he could lift up to 50 lbs on occasion,” and that he can
push/pull up to 20 pounds and occasionally push/pull up to 100 pounds. Along with the letter,
Dr. Cook provided Plaintiff’s most recent echocardiogram and clinic note.3 The clinic note
accompanying Dr. Cook’s letter states that Plaintiff “continues to demonstrate biventricular
enlargement and severe dysfunction, as well as frequent episodes of atrial tachycardia and
elevated pulmonary pressures via cardiac catheterization.” Dr. Cook further stated as follows:
[Plaintiff] has a history of complex congenital heart disease including
transposition of the great arteries status post Senning procedure, recurrent baffle
obstruction, pulmonary hypertension, heart failure, Type II diabetes, obstructive
sleep apnea, and hypertension. He is due to see us again in the clinic but has been
unable to do so due to lack of employment and health insurance…Because of the
severity of his congenital heart disease and co-morbidities listed above, we would
recommend that he have significant limitations to his work capacity…We feel
that Duane is quite ill and limited in his work capacity from a cardiac standpoint.
The ALJ declined to give Dr. Cook’s opinion controlling weight, because he found the
December 12, 2012 and September 24, 2012 opinions inconsistent.
The inconsistencies to
which the ALJ pointed were that Dr. Cook’s September opinion, unlike the December opinion,
allowed medium work with postural limitations, and contained no qualification regarding breaks
or rest periods. The ALJ further noted a lack of explanation for the inconsistency, or evidence
of a material change in medical condition, during the intervening three months, as well as the
3
As the ALJ noted, Plaintiff’s records indicate Plaintiff’s classification under the New York Heart Association
functional class II-III. Class II refers to slight limitation of physical activity; comfortable at rest; ordinary physical
activity results in fatigue, palpitation, shortness of breath. Class III refers to marked limitation of physical activity;
comfortable at rest; less than ordinary activity causes fatigue, palpitation, shortness of breath.
http://www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-of-HeartFailure_UCM_306328_Article.jsp#.Vz9rYWf2aig.
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lack of explanation or rationale for Dr. Cook’s conclusions. The ALJ did not explicitly consider
factors such as the length of the treating relationship and the frequency of examination, the
nature and extent of the treatment relationship, and Dr. Cook’s specialization.
The ALJ’s approach to Dr. Cook’s opinion, overall, raises several concerns. First,
contrary to the ALJ’s observation, the Release to Work Form that Dr. Cook completed in
September in fact indicates Dr. Cook’s opinion that Plaintiff could perform certain activities
“with breaks.” Second, the September and December opinions are not materially inconsistent.
The ALJ referred to the latter opinion as describing “light work” – due, I presume, to Dr. Cook’s
stated preference that Plaintiff lift no more than 20 lbs. -- and the former as allowing “medium
work,” and relied on that discrepancy to assign less weight to the opinions. Again, however, the
Release to Work form defined “medium work” for Dr. Cook, who was asked to choose a
category, as “maximum lifting of up to 50 lbs., frequent lifting/carrying of up to 25 lbs”; on that
same form, Dr. Cook more specifically noted frequent lifting/carrying of up to 20 lbs. Then, in
December, Dr. Cook opined to “no more than 20 lbs but if necessary he could lift up to 50 lbs on
occasion.” Other than a five-pound differential in the amount allowed for frequent carrying, Dr.
Cook’s opinions in this regard do not vary. Under the circumstances, the inconsistency on
which the ALJ relied appears to be de minimis. Third, given the information that Dr. Cook
submitted along with his December letter, the basis for the ALJ’s finding that Dr. Cook’s opinion
lacked rationale is not entirely clear.
In addition, more specifically, the ALJ erred when he rejected outright Dr. Cook’s opinion
regarding breaks. He rejected that opinion because Dr. Cook’s recommendation in that regard
accompanied “a description of work at the light exertional level,” and the ALJ determined that
Plaintiff would instead be limited to sedentary work. The ALJ then stated, “I find no reason to
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believe that the claimant would require additional rest periods of he were limited to sedentary
work where he could remain seated most of the workday, lifting no more than 10 pounds
occasionally.” “Light work” is defined as involving frequent lifting or carrying of objects
weighing up to 10 pounds, with lifting no more than 20 pounds at a time, and includes certain
jobs that “involve[] sitting most of the time.” 20 C.F.R. § 404.1567. Sedentary work is defined
as a job that involves sitting, and lifting no more than 10 pounds at a time. Id. Thus, both light
and sedentary work might involve sitting most of the day. The ALJ did not indicate that he
relied on evidence that the ten-pound difference in maximum lift/carry weights – the only certain
difference between light and sedentary work -- negates the need for breaks to which Dr. Cook
opined.4 Given the totality of the medical records in this case, it is unclear whether the ALJ
merely relied on speculation or lay opinion to determine that there is no reason to believe that
Plaintiff would need frequent breaks if doing sedentary work.
Under all of the circumstances, this matter will be remanded for additional consideration
of Dr. Cook’s opinion, in accordance with all of the evidence of record and alongside the factors
applicable to treating sources. The ALJ is certainly entitled to determine that Dr. Cook’s opinion
is not entitled to controlling weight, but must fully and specifically explain his reasons for
assigning such weight. On remand, the ALJ may consider additional evidence if appropriate.
CONCLUSION
In sum, Plaintiff’s Motion will be granted, and Defendant’s denied. This matter will be
remanded for further proceedings. An appropriate Order follows.
4
The ALJ afforded substantial weight to the opinion of a non-examining agency consultant, Dr. Fox. He did not,
however, rely on Dr. Fox’s opinion to reject Dr. Cook’s opinion regarding the need for breaks.
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ORDER
AND NOW, this 21st day of July, 2016, it is hereby ORDERED, ADJUDGED, and
DECREED that Plaintiff’s Motion is granted, and Defendant’s denied. This matter is remanded
for further proceedings consistent with the foregoing Opinion.
BY THE COURT:
/s/Donetta W. Ambrose
____________________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court
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