DiRocco v. Astrue

Filing 16

OPINION AND ORDER granting 8 Motion to Reverse Decision of the Commissioner; denying 13 Motion to Affirm the Decision of the Commissioner; adopting 14 Report and Recommendations and remanding the matter to the agency for futher proceedings. So Ordered by Judge William E. Smith on 4/12/10. (Jackson, Ryan)

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND ___________________________________ LISA DiROCCO, ) ) ) Plaintiff ) ) v. ) ) MICHAEL J. ASTRUE, Commissioner of ) the Social Security Administration,) ) Defendant. ) ___________________________________)

CA. No. 09-094 S

OPINION AND ORDER WILLIAM E. SMITH, United States District Judge. Plaintiff here seeks reversal of a decision by the

Commissioner of Social Security (the "Commissioner") denying her request for disability benefits. issued a Report and Magistrate Judge Almond has ("R&R") recommending that

Recommendation

Plaintiff's motion be granted, and that the case be remanded for rehearing. the The Commissioner objects, but the Court overrules and accepts the R&R in full, for the reasons

objection

stated therein and those discussed below. In considering an objection to an R&R, the Court conducts "a de novo determination of those portions of the [R&R] to which objection is made" and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate judge."

28 U.S.C. § 636(b)(1) (2009); see Fed. R.

Civ. P. 72(b)(3); Jasty v. Wright Med. Tech., Inc., 528 F.3d 28, 33 (1st Cir. 2008). The R&R concludes Law this case should who be remanded to the

Administrative

Judge

("ALJ")

denied

Plaintiff's See 42 U.S.C.

application for benefits on behalf of the agency. § 405(g).

The sole basis for that recommendation is that the

ALJ's decision misquoted a statement from one of Plaintiff's treating physicians, Dr. David Colpak. Dr. Colpak, who is

trained as a psychologist, found that Plaintiff showed "many indications of serious depression," and opined that it was

unlikely she could sustain any productive activity.

(Tr. 363.)

The ALJ, however, gave little weight to Dr. Colpak's opinion, in light of another the observation ALJ quoted emotional she thought as fair he had made. that be

Specifically, Plaintiff's

Dr.

Colpak was

commenting and

"overall

life

could

adequately modulated."

(Tr. 28 (emphasis added).)

This, the

ALJ believed, conflicted with Dr. Colpak's primary findings, and rendered his report unreliable. But what Dr. Colpak actually

wrote was that Plaintiff's "access to overall emotional life is also fair and can be inadequately modulated." (Tr. 364

(emphasis added).) The Commissioner contends that the mistake was incidental, and that it does not eradicate the substantial evidence in the remainder of the record supporting the ALJ's determinations.
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It

is true that not every misstatement damns an ALJ's decision to reversal. See, e.g., Perez Torres v. Sec'y of Health & Human

Servs., 890 F.2d 1251, 1255 (1st Cir. 1989) (finding that an ALJ's mistake as to the contents of the record did not justify reversing a denial of benefits). Nevertheless, this particular Dr. Colpak was

error was not harmless under the circumstances.

the only treating source who was a mental health specialist to submit an evaluation of Plaintiff's alleged depression. His

opinion was thus central to Plaintiff's argument that her mental condition rejected was Dr. disabling. Colpak's And views it is apparent she that the he ALJ had

because

believed

contradicted himself.

(See Tr. 28.)

However, if the ALJ had

read the report correctly, it is reasonable to think that she would have found no inconsistency between the physician's

conclusions and his other remarks, since she mistook a key word, "inadequately," for its opposite "adequately." Beyond that point, the Court cannot hypothesize about what might have happened. opinion greater weight? Would the ALJ have given Dr. Colpak's Might that, in turn, have led the ALJ

to accept the opinions of other doctors who found that Plaintiff was severely impaired, but that the ALJ dismissed as unsupported by the rest of the evidence? As explained in the R&R, only the

ALJ can answer; presuming that she would have arrived at the

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same result would require speculation. at 19.)

(See R&R, Doc. No. 14,

In sum, "it is unclear whether the misquoted [statement] was determinative" in the ALJ's decision. Poole v. Freeman As the

United Coal Min. Co., 897 F.2d 888, 895 (7th Cir. 1990).

analysis of similar facts in Poole makes clear, the mistake thus justifies remand for a rehearing. assessed the plaintiff as capable In that case, a doctor had of lifting 40 pounds and

carrying it 300 feet, but the ALJ quoted the distance as 30 feet. Id. The court stressed that it was not in the position

to unravel the consequences of that disparity: [T]he ALJ could have found total disability without regard to [the misquoted] limitation because there is evidence that [the plaintiff's] usual . . . employment required him to maintain a mile-long section of [equipment], and [the plaintiff] could walk only one block. Given our standard of review, however, it is inappropriate for the court to supply a rationale for the ALJ's decision or to affirm on grounds other than those relied upon by the ALJ. Because the discrepancy could have been influential given the requirements of [the plaintiff's] work, we remand for the ALJ to address specifically each of the physical limitations listed in [the doctor's] report as it relates to the exertional requirements of [the plaintiff's] employment. Id. (internal citations omitted). The same reasoning applies

here, because the inaccuracy "could have been influential" given the circumstances described above. For these reasons, the Court agrees with the R&R that the ALJ should be granted the opportunity to review the physician's
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report based on the language actually used.

Plaintiff's motion The case

is therefore GRANTED and Defendant's motion is DENIED.

is remanded to the agency for further proceedings consistent with this opinion and with the R&R. IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith United States District Judge Date: April 12, 2010

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