Filing 16

OPINION and ORDER granting 12 Motion for Summary Judgment; denying 14 Motion for Summary Judgment. It is further ordered that the decision of the Commissioner of Social Security is hereby vacated and the case is remanded for further administrative proceedings consistent with the foregoing opinion. Signed by Judge Donetta W. Ambrose on 1/11/17. (slh)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DANIEL FRED KIRPARTICK, JR., ) ) ) ) ) ) ) ) ) ) Plaintiff, -vsCAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant. Civil Action No. 16-380 AMBROSE, Senior District Judge OPINION Pending before the Court are Cross-Motions for Summary Judgment. (ECF Nos. 12 and 14). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 13 and 15). After careful consideration of the submissions of the parties, and based on my Opinion set forth below, I am granting Plaintiff’s Motion for Summary Judgment (ECF No. 12) and denying Defendant’s Motion for Summary Judgment. (ECF No. 14). I. BACKGROUND Plaintiff brought this action for review of the final decision of the Commissioner of Social Security (ACommissioner@) denying his application for disability insurance benefits pursuant to the Social Security Act (AAct@). Plaintiff filed his application alleging he had been disabled since July 26, 2012. (ECF No. 8-5, p. 4. Administrative Law Judge (“ALJ”), David F. Brash, held a hearing on April 9, 2014. (ECF No. 8-2, pp. 39-68). On July 18, 2014, the ALJ issued an unfavorable decision finding Plaintiff was not disabled under the Act. (ECF No. 8-2, pp. 14-27). After exhausting all administrative remedies, Plaintiff filed the instant action with this court. The parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 12 and 14). The issues are now ripe for review. 1 II. LEGAL ANALYSIS A. Standard 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. 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 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 2 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. Plaintiff Residual Functional Capacity (RFC)1 Plaintiff argues that the ALJ “made his [RFC] decision without medical expert opinion regarding Plaintiff’s bilateral rotator cuff syndrome, resulting in a finding not supported by substantial evidence.” (ECF No. 13, pp. 18-23). In support of the same, Plaintiff argues that while the ALJ found that Plaintiff had a severe impairment of bilateral rotator cuff syndrome, he rejected all medical opinion evidence regarding the same when formulating his RFC. Id. As such, Plaintiff argues that the ALJ’s decision is not supported by substantial evidence and remand is appropriate. Id. After a review of the record, I agree. 1 RFC refers to the most a claimant can still do despite his/her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). The assessment must be based upon all of the relevant evidence, including the medical records, medical source opinions, and the individual’s subjective allegations and description of his/her own limitations. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Additionally, a person’s RFC is an administrative finding reserved for the ALJ, not a medical opinion to be rendered by a doctor. 20 C.F.R. §' 404.1527, 416.927; 20 C.F.R. §§404.1546(c), 416.946(c). 3 The amount of weight accorded to medical opinions is well-established. Generally, the ALJ will give more weight to the opinion of a source who has examined the claimant than to a non-examining source. 20 C.F.R. § 416.927(c)(1). In addition, the ALJ generally will give more weight to opinions from a treating physician, “since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.” Id. § 416.927(c)(2). If the ALJ finds that “a treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence [of] record,” he must give that opinion controlling weight. Id. Also, “the more consistent an opinion is with the record as a whole, the more weight [the ALJ generally] will give to that opinion.” Id. § 416.927(c)(4). In the event of conflicting medical evidence, the Court of Appeals for the Third Circuit has explained: “A cardinal principle guiding disability determinations is that the ALJ accord treating physicians’ reports great weight, especially ‘when their opinions reflect expert judgment based on continuing observation of the patient’s condition over a prolonged period of time.’” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). However, “where . . . the opinion of a treating physician conflicts with that of a non-treating, non-examining physician, the ALJ may choose whom to credit” and may reject the treating physician’s assessment if such rejection is based on contradictory medical evidence. Id. Similarly, under 20 C.F.R. § 416.927(d)(2), the opinion of a treating physician is to be given controlling weight only when it is well-supported by medical evidence and is consistent with other evidence in the record. Becker v. Comm’r of Social Sec. Admin., No. 10-2517, 2010 WL 5078238, at *5 (3d Cir. Dec. 14, 2010). Although the ALJ may choose whom to credit when faced with a conflict, he “cannot reject evidence for no reason or for the wrong reason.” Diaz v. Comm’r of Soc. Security, 577 F.3d 500, 505 (3d Cir. 2009). 4 In this case, the ALJ gave little or limited weight to all opinion evidence regarding Plaintiff’s rotator cuff syndrome, including the opinions of the treating doctor (Dr. Dambrogio), a consultative doctor to whom Plaintiff was sent by his employer (Dr. Jones), and the state agency consulting examiner (Dr. Torio). (ECF No. 8-2, pp. 22-23). The reasons given for rejecting these opinions appear, on their face, to be valid and acceptable reasons for discounting opinion evidence. 20 C.F.R. §404.1527 (evaluating opinion evidence). The issue, however, is that there is no other medical opinion evidence regarding Plaintiff’s rotator cuff syndrome. Id. at pp. 19-25. As a result, I am unable to find that the physical portion of the RFC2 is based on substantial evidence since the ALJ basically rejected every medical opinion. Id. In other words, there is no other opinion evidence of record regarding Plaintiff’s functional abilities upon which the ALJ could have relied upon in forming the RFC for Plaintiff. “Rarely can a decision be made regarding a claimant’s [RFC] without an assessment from a physician regarding the functional abilities of the claimant.” Gormont v. Astrue, No. 11-2145, 2013 WL 791455 at *7 (M.D. Pa. Mar. 4, 2013), citing Doak v. Heckler, 790 F.2d 26 (3d Cir. 1986). Furthermore, “an administrative law judge lacks the expertise to ascertain a claimant's residual functional capacity from raw medical data.” Moffatt v. Astrue, No. CIV.A. 10-226, 2010 WL 3896444, at *6 (W.D. Pa. Sept. 30, 2010) (citations omitted). Thus, after a review of the record, I find the ALJ’s opinion is not based on substantial evidence. Additionally, I note that the ALJ found Plaintiff was not entirely credible (ECF No. 8-2, p. 20). Thus, there is no remaining evidence upon which to show an inconsistency or to base his RFC. Consequently, remand is warranted on this basis. On remand, the ALJ may order another consultative examination, if he finds it necessary. An appropriate order shall follow. 2 The ALJ found that Plaintiff had the RFC to perform sedentary work with a large number of very specific limitations. (ECF No. 8-2, p. 19). 5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DANIEL FRED KIRPARTICK, JR., ) ) ) ) ) ) ) ) ) ) Plaintiff, -vsCAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant. Civil Action No. 16-380 AMBROSE, Senior District Judge ORDER OF COURT THEREFORE, this 11th day of January, 2017, it is ordered that Plaintiff=s Motion for Summary Judgment (ECF No. 12) is granting and Defendant=s Motion for Summary Judgment (ECF No. 14) is denied. It is further ordered that the decision of the Commissioner of Social Security is hereby vacated and the case is remanded for further administrative proceedings consistent with the foregoing opinion. BY THE COURT: s/ Donetta W. Ambrose Donetta W. Ambrose United States Senior District Judge 6

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