GRISSINGER v. COLVIN

Filing 19

OPINION and ORDER granting 13 Motion for Summary Judgment; denying 15 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 10/11/16. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN FRANKLIN GRISSINGER JR.,
Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 15-202

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 13 and
15). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 14, 16 and 17). 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. 13) and denying
Defendant’s Motion for Summary Judgment. (ECF No. 15).
I.

BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social

Security (ACommissioner@) denying his applications for supplemental security income (“SSI”)
and disability insurance benefits (“DIB”) pursuant to the Social Security Act (AAct@). Plaintiff
alleges her disability began on June 10, 2011. (ECF No. 24, p. 1). Administrative Law Judge
(“ALJ”), Barbara Artuso, held a hearing on July 23, 2013. (ECF No. 19-2, pp. 41-73). On March
19, 2014, the ALJ found that Plaintiff was not disabled under the Act. (ECF No. 9-2, pp. 25-34).
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 13 and 15).
The issues are now ripe for review.

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
impairment does not satisfy one of the impairment listings, whether the claimant=s impairments

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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’s Subjective Complaints of Pain – Lack of Medical Insurance

Plaintiff’s only argument is that the ALJ failed to properly evaluate Plaintiff’s subjective
complaints, resulting in a finding not supported by substantial evidence. (ECF No. 14, pp. 8-11).
Specifically, Plaintiff suggests that the ALJ improperly diminished his credibility for his lack of
treatment without properly accounting for Plaintiff’s lack of insurance.

Id.

After careful

consideration, I agree.
It is well-established that the ALJ is charged with the responsibility of determining a
claimant’s credibility. See Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). The ALJ’s
decision “must contain specific reasons for the finding on credibility, supported by the evidence
in the case record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
reason for that weight.” S.S.R. 96-7p. Ordinarily, an ALJ's credibility determination is entitled to
great deference. See Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014); Reefer v. Barnhart,
326 F.3d 376, 380 (3d Cir.2003).

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As the ALJ stated, she must follow a two-step process when assessing pain: first, she
must determine whether there is a medical impairment that could reasonably be expected to
produce the plaintiff’s pain or other symptoms; and, second, she must evaluate the intensity,
persistence, and limiting effects of the plaintiff’s symptoms to determine the extent to which they
limit the plaintiff’s functioning. (ECF No. 9-2, p. 29). Pain alone, however, does not establish a
disability. 20 C.F.R. §§ 404.1529(a); 416.929(a). Allegations of pain must be consistent with
objective medical evidence and the ALJ must explain the reasons for rejecting non-medical
testimony. Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000).
In determining the limits on a claimant’s capacity for work, the ALJ will consider the
entire case record, including evidence from the treating, examining, and consulting physicians;
observations from agency employees; and other factors such as the claimant’s daily activities,
descriptions of pain, precipitating and aggravating factors, type, dosage, effectiveness and side
effects of medications, treatment other than medication, and other measures used to relieve the
pain. 20 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 96-7p. The ALJ also will look at
inconsistencies between the claimant’s statements and the evidence presented. 20 C.F.R. §§
404.1529(c)(4), 416.929(c)(4). Inconsistencies in a claimant's testimony or daily activities permit
an ALJ to conclude that some or all of the claimant's testimony about her limitations or
symptoms is less than fully credible. See Burns v. Barnhart, 312 F.3d 113, 129–30 (3d Cir.
2002).
Here, the ALJ concluded that Plaintiff’s statements concerning the intensity, persistence,
and limiting effects of his symptoms were not entirely credible. (ECF No. 9-2, p. 30). In support
of this conclusion, the ALJ cited several times to evidence that Plaintiff’s treatment was
conservative. See, e.g., id. at 31 (stating that there was “no documentation of any subsequent
treatment for the claimant’s alleged neck and related symptoms”); id. (stating that “Plaintiff’s
treatment history does “not fully support the degree of limitation he alleges with regard to his
neck impairment”); id. (“the only treatment the claimant has received has been medication and a

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course of physical therapy”); id. (indicating that Plaintiff “has [not] undergone injections”); id.
(pointing out that Plaintiff “has not reported to the emergency room with any exacerbations of
his neck pain or to request refills of his medication”); id. (“no emergency room visits for neck
pain”); id. at 32 (the ALJ’s residual functional capacity is based, in part, on “the claimant’s
conservative treatment history”). Plaintiff contends that the ALJ erred in concluding he lacked
credibility due to conservative treatment because the ALJ failed to address Plaintiff’s inability to
afford such treatment due to lack of health insurance. (ECF No. 14, pp. 10-11).
It is well-established that an “ALJ may rely on lack of treatment, or the conservative
nature of treatment, to make an adverse credibility finding, but only if the ALJ acknowledges and
considers possible explanations for the course of treatment.”

Wilson v. Colvin, No. 3:13-

cv-02401-GBC, 2014 WL 4105288, at * 11 (M.D. Pa. Aug. 19, 2014). As set forth in Social
Security Ruling 96-7p, however, “[t]he adjudicator must not draw any inferences about an
individual’s symptoms and their functional effect from a failure to seek or pursue regular medical
treatment without first considering any explanations that the individual may provide, or other
information in the case record, that may explain infrequent or irregular medical visits or failure to
seek medical treatment.” S.S.R. 96-7p, 1996 WL 374186, at **7-8. Possible explanations that
may provide insight into an individual’s credibility include the inability to afford treatment and/or
lack of access to free or low-cost medical services. Id. Courts routinely have remanded cases
in which the ALJ’s credibility analysis fails to address evidence that a claimant declined or failed
to pursue more aggressive treatment due to lack of medical insurance.

See, e.g., Newell v.

Comm’r of Soc. Sec., 347 F.3d 541, 547 (3d Cir. 2003); Wilson, 2014 WL 4105288, at 11-12;
Kinney v. Comm’r of Soc. Sec., 244 F. App’x 467, 470 (3d Cir. 2007); Sincavage v. Barnhart,
171 F. App’x 924, 927 (3d Cir. 2006); Henderson v. Astrue, 887 F. Supp. 2d 617, 638-39 (W.D.
Pa. 2012); Plank v. Colvin, Civ. No. 12-4144, 2013 WL 6388486, at *8 (E.D. Pa. Dec. 6, 2013).
In this case, Plaintiff adequately explained his lack of treatment. (ECF No. 9-2, p. 53).
Specifically, he testified that he was not seeing a doctor because he did not have medical

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insurance and could not afford a doctor without income. (ECF No. 9-2, p. 53). Therefore, it
would have been unreasonable to assume that Plaintiff would have sought medical treatment if
he was experiencing the neck pain and functional limitations as alleged.

Newell, 347 F.3d at

547. I note that ALJ acknowledged that Plaintiff testified that he did not have medical insurance.
(ECF No. 9-2, p. 29). The ALJ, however, never stated whether she credited that testimony and,
as set forth above, clearly cited conservative treatment and lack of treatment as reasons to
discredit the claimed intensity, persistence, and limiting effects of Plaintiff’s neck pain.1 (ECF
No. 9-2, pp. 29-32). Because the ALJ failed to consider Plaintiff’s explanation for his
conservative treatment course, her rejection of Plaintiff’s credibility on this ground cannot stand.
See Wilson, 2014 WL 4105288, at *11; S.S.R. 96-7p.
Therefore, remand is warranted.

Upon remand, the ALJ must reassess Plaintiff’s

credibility in accordance with S.S.R. 96-7p.
An appropriate order shall follow.

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I note that the ALJ seems to further discredit Plaintiff for reporting to the emergency room for other acute issues
but not for any exacerbations of his neck pain or to request refills of his medication. (ECF No. 9-2, p. 31). The ALJ
does not elaborate further. Therefore, I am unable to discern if the ALJ is relating this to Plaintiff’s lack of
insurance, as Defendant suggests.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN FRANKLIN GRISSINGER JR.,

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Plaintiff,
-vsCAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 15-202

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 11th day of October, 2016, it is ordered that Plaintiff=s Motion for
Summary Judgment (Docket No. 13) is granted and Defendant=s Motion for Summary Judgment
(Docket No. 15) 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

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