Cowden v. Colvin

JULIE COWDEN, Plaintiff, v. CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

CASE NO. 1:16-cv-00168-YK-GBC

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

March 17, 2017

(JUDGE KANE)

(MAGISTRATE JUDGE COHN)

REPORT AND RECOMMENDATION TO VACATE THE DECISION OF THE COMMISSIONER AND REMAND FOR FURTHER PROCEEDINGS

Docs. 1, 9, 10, 13, 16, 17

REPORT AND RECOMMENDATION

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Defendant") denying Plaintiff's application for disability insurance benefits ("DIB") under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act") and Social Security Regulations, 20 C.F.R. §§404.1501 et seq., §§416.901 et. seq. (the "Regulations"). This case presents the same issue addressed in Tilton, a recent case before the undersigned and Judge Kane. Tilton v. Colvin, 184 F. Supp. 3d 135 (M.D. Pa. 2016). Like in Tilton, the undersigned recommends remand. The undersigned further notes that the Social Security Administration has abolished the treating source rule, the basis for the present recommendation to remand. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01 at 5853 (January 18, 2017) ("we are not retaining the treating source rule"). However, the Court evaluates the ALJ decision based on the Regulations in effect at the time of the decision, and leaves it to the ALJ on remand to apply the new Regulations in the first instance.

Plaintiff underwent spine surgery during the relevant period, her fourth spine surgery overall. Doc. 10. Post-surgery, she treated with powerful opiates, specifically fentanyl and an escalating dose of Oxycontin. Doc. 10. Providers observed post-surgical objective findings, including decreased lower extremity strength, "getting up and down from chair because of chronic pain," "look[ing] miserable as usual, flat affect seems to be near tears frequently," decreased sensation, decreased range of motion in the spine, and asymmetric, abnormal, and antalgic gait. (Tr. 541-49, 664, 669, 676,702). Plaintiff's five spine surgeries and documented post-surgical changes also provide objective support for her complaints. (Tr. 702).

Multiple treating sources repeatedly opined that Plaintiff had limitations that would allow part-time, but not full-time, work. Doc. 10. No medical opinion contradicts these opinions. The ALJ did not credit these opinions. Doc. 10. The non-medical evidence does not contradict these opinions. Doc. 10. Plaintiff returned to work part-time post-surgery, earning $1,765.00 in the first quarter of 2012; $1,597.00 in the fourth quarter of 2012; $1,623.00 in the first quarter of2013; $1,710.00 in the second quarter of 2013; $2.00 in the 3rd quarter of 2013; and $2.00 in the 4th quarter of 2013. Doc. 10. Plaintiff's ability to work part-time does not contradict the opinions that she could work part-time. Doc. 10. Thus, the only way for the ALJ to reject the treating source medical opinion was lay reinterpretation of medical evidence. Id.

An ALJ may not reject a treating source medical opinion with only lay reinterpretation of medical evidence. See Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269 (M.D. Pa. Jan. 13, 2016) (citing 20 C.F.R. §404.1527(c)(2); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir.1988) (Commissioner could not reject medical opinions "simply by having the administrative law judge make a different medical judgment"); Doak v. Heckler, 790 F.2d 26, 29-30 (3d Cir.1986) ("[n]o physician suggested that the activity Doak could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence"); Ferguson v. Schweiker, 765 F.2d 31, 37, 36-37 (3d Cir.1985); Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir.1983) ("the ALJ's conclusion that appellant is capable of engaging in sedentary activity is merely a function of the ALJ's own medical judgment. As such, his conclusion may not be permitted to stand, for we have pointed out time and again that these kinds of judgments are not within the ambit of the ALJ's expertise"); Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir.1983); Kelly v. R.R.Ret. Bd., 625 F.2d 486, 494 (3d Cir.1980) ("[a]n administrative law judge may not reject professional medical evidence on the basis of his own observation"); Rossi v. Califano, 602 F.2d 55, 58-59, (3d Cir.1979) (ALJ's opinion was "not supported by any medical opinion in this case ... an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence."); Fowler v. Califano, 596 F.2d 600, 603 (3d Cir.1979) ("[w]e have examined the record for an expert medical opinion that Mrs. Rossi was capable of working ... There is none"); Gober v. Matthews, 574 F.2d 772, 777 (3d Cir.1978)).These cases hold that, even under the deferential substantial evidence standard of review, no reasonable person would reject a supported treating source medical opinion in favor of the ALJ's lay reinterpretation of medical evidence. Id.

The Court is bound by precedential Third Circuit decisions. See Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269, at *1 (M.D. Pa. Jan. 13, 2016) (citing Kool, Mann, Coffee & Co. v. Coffey, 300 F.3d 340, 355 (3d Cir.2002) (Statements that are "not necessary to the actual holding of the case" are "dicta" and "not binding"); Calhoun v. Yamaha Motor Corp., 216 F.3d 338, 344 n. 9 (3d Cir.2000) ("Insofar as this determination was not necessary to either court's ultimate holding, however, it properly is classified as dictum. It therefore does not possess a binding effect on us pursuant to the 'law of the case' doctrine."); Chowdhury v. Reading Hosp. & Med. Ctr., 677 F.2d 317, 324 (3d Cir.1982)("[D]ictum, unlike holding, does not have the strength of a decision 'forged from actual experience by the hammer and anvil of litigation,' a fact to be considered when assessing its utility in the context of an actual controversy. Similarly, appellate courts must be cautious to avoid promulgating unnecessarily broad rules of law.") (quotations omitted)). Consequently, the Court finds that the ALJ failed to provide a sufficient reason to reject the treating source opinion.

"Despite the deference due to administrative decisions in disability benefit cases, "[Courts] retain a responsibility to scrutinize the entire record and to reverse or remand if the [Commissioner]'s decision is not supported by substantial evidence." Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981)).The Court recommends that Plaintiff's appeal be granted, the decision of the Commissioner be vacated, and the matter be remanded for further proceedings and proper evaluation of the medical opinions.

II. Procedural Background

On November 9, 2012, Plaintiff applied for DIB. (Tr. 166-67). On December 31, 2012, the Bureau of Disability Determination ("state agency") denied Plaintiff's application (Tr. 106-15), and Plaintiff requested a hearing. (Tr. 125-26). On June 9, 2014, an ALJ held a hearing at which Plaintiff—who was represented by an attorney—and a vocational expert ("VE") appeared and testified. (Tr. 44-105). On July 18, 2014, the ALJ found that Plaintiff was not entitled to benefits.(Tr. 23-43). On August 22, 2014, Plaintiff requested review with the Appeals Council (Tr. 19-22), which the Appeals Council denied on December 1, 2015, affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-7). See Sims v. Apfel, 530 U.S. 103, 107 (2000).

On January 30, 2016, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On April 4, 2016, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 9, 10). On May 13, 2016, Plaintiff filed a brief in support of the appeal ("Pl. Brief"). (Doc. 13). On July 8, 2016, Defendant filed a brief in response ("Def. Brief"). (Doc. 16). On July 18, 2016, Plaintiff filed a brief in reply ("Pl. Reply"). (Doc. 17). On November 7, 2016, the Court referred this case to the undersigned Magistrate Judge. The matter is now ripe for review.

III. Standard of Review and Sequential Evaluation Process

To receive benefits under the Act, a claimant must establish an "inability to engage in any substantial gainful activity by reason of any 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 not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits show that:

He is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind ofsubstantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

The ALJ uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520. The ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment from 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listing"); (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520. Before step four in this process, the ALJ must also determine Plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e).

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