Gallo v. Colvin

186 F.Supp.3d 351

Cathy Renee Gallo, Plaintiff,

v.Carolyn Colvin, Acting Commissioner of Social Security, Defendant.

Civil Action No. 4:15–CV–0167

United States District Court, M.D. Pennsylvania.

Signed May 13, 2016

Katherine L. Niven, Law Office of Katherine L. Niven & Associates, PC, Harrisburg, PA, for Plaintiff.

D. Brian Simpson, United States Attorney's Office-Social Security Divis, Harrisburg, PA, for Defendant.

ORDER

Matthew W. Brann, United States District Judge

I. Introduction¹

Plaintiff, Cathy Renee Gallo, hereinafter "Gallo," filed a complaint² in this Court after the Acting Commissioner of Social Security, Defendant Carolyn Colvin, hereinafter "the Commissioner," denied her application for supplemental security income benefits.

The action was jointly assigned to Magistrate Judge Gerald B. Cohn, who issued a thorough, thirty-page report and recommendation³ on January 20, 2016. He recommended that the Commissioner's decision be reversed and the action remanded to the administrative law judge.

Both Gallo and the Commissioner briefed responses to the magistrate judge's report and recommendation. The Court respectfully disagrees with the recommendation of the magistrate judge and will affirm the decision of the Commissioner denying Gallo supplemental security income benefits.

II. Discussion

Upon designation, a magistrate judge may "conduct hearings, including evidentiary hearings, and ... submit to a judge of the court proposed findings of fact and recommendations."⁴ Once filed, this Report and Recommendation is disseminated to the parties in the case who then have the opportunity to file written objections.⁵ When objections are timely filed, the district court must conduct a de novo review of those portions of the report to which objections are made.⁶ Although the standard of review for objections is de novo, the extent of review lies within the discretion of the district court, and the court may otherwise rely on the recommendations of the magistrate judge to the extent it deems proper.⁷

For portions of the report and recommendation to which no objection is made, the Court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."⁸ Regardless of whether timely objections are made by a party, the district court may accept, not accept, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.⁹

To evaluate disability insurance and supplemental security income claims, the Commissioner and administrative law judge utilize a five-step process.¹⁰ This process requires the Commissioner, and the administrative law judge, to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity, (2) has an impairment that is severe or a combination of impairments that is severe, (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment, (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy.¹¹

The Commissioner affirmed the decision of the administrative law judge, who had held at step three that Gallo did not have an impairment or combination of impairments that meet or equal a listing; decided at step four that Gallo has the residual functional capacity to perform less than the full range of sedentary work; and found at step five that there are jobs in the national economy that she could perform.

The magistrate judge found that the administrative law judge erred in two respects. First, that he relied on a single state agency non-examining medical opinion, and second, that the administrative law judge conflated Gallo's physical impairments of neurogenic and vascular thoracic outlet syndromes. I disagree with both propositions.

The administrative law judge wrote that he gave "significant weight to the medical opinion[ ] of Dr. Vonah, who examined the claimant on multiple occasions;" significant weight to the impartial medical expert, Dr. Owens; moderate weight to "the medical opinions of Dr. Campbell and Dr. Karas, who treated the claimant on a limited basis;" and limited weight "to the non-examining opinions of the state agency psychological and medical consultants."¹²

The administrative law judge's statement of the weight given to the treating and non-treating physicians was more than just lip service. When I independently reviewed his written opinion supporting his decision, the weight given to each opinion is evident by the number of times he cited to each physician.¹³ "A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time."¹⁴ It is evident that the administrative law judge gave the most weight to Dr. Vonah, Gallo's primary care physician, as those treatment notes are the most frequently cited in his written decision.

The magistrate judge also suggested that the administrative judge erred by conflating Gallo's neurogenic and vascular thoracic outlet syndromes. I also disagree. The administrative law judge copied into his opinion the notes from Gallo's treating physicians. It is respectfully suggested that the magistrate judge, "impermissibly substituted his own judgment for that of a physician"¹⁵ by engaging in his own analysis of Gallo's neurogenic and vascular symptoms based on his own internet research.¹⁶

Moreover, the magistrate judge intimated, without finding as such, that the administrative law judge erred for not having relied on the doctors' determination of disability. The magistrate judge wrote that "[a]lthough at least three medical opinions existed in Plaintiff's file at the time of the hearing, all indicating that she was disabled, the ALJ called an additional medical expert [ ]."¹⁷ However, it is well settled in this circuit that "[t]he ultimate decision concerning the disability of a claimant is reserved for the Commissioner."¹⁸

III. Conclusion

The report and recommendation of the magistrate judge is REJECTED. ECF No. 18. The decision of the Commissioner is AFFIRMED. The Clerk is directed to enter judgment in favor of the Commissioner and against the Plaintiff. The Clerk is further directed to close the case file.

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

GERALD B. COHN, UNITED STATES MAGISTRATE JUDGE.

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Defendant") denying the application of Cathy Gallo ("Plaintiff") for supplemental security income ("SSI") and 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 et seq ., 416 et seq. (the "Regulations").¹ Here, two state agency physicians and at least one treating source opined that Plaintiff suffered disabling limitations. One state agency physician opined that Plaintiff did not suffer disabling limitations. Since the Regulations were amended in 1991 to include standards for evaluating medical opinion, the Third Circuit has not affirmed, in a precedential opinion, any ALJ who rejects a treating physician opinion within only a single state agency non-examining medical opinion.

Here, relying on a single state agency non-examining medical opinion was an error. Plaintiff suffered from neurogenic thoracic outlet syndrome and vascular thoracic outlet syndrome. Vascular types of thoracic outlet syndrome involve compressed arteries or veins. Neurogenic types of thoracic outlet syndrome involve compressed nerves. In 2009 and 2010, Plaintiff was diagnosed with vascular and neurogenic thoracic outlet syndrome. In 2011, tests excluded vascular thoracic outlet syndrome, but Plaintiff's neurogenic symptomology was so severe that she still needed additional surgery. In 2012, tests again excluded vascular thoracic outlet syndrome, but physical examination indicated the continued presence of neurogenic thoracic syndrome. The state agency doctors who opined that Plaintiff was disabled acknowledged the difference between neurogenic and vascular symptoms. The state agency doctor who opined that Plaintiff was not disabled did not acknowledge the difference between neurogenic and vascular symptoms.

The only rationale provided by the ALJ to credit the single state agency reviewing opinion that Plaintiff was not disabled were medical records showing that Plaintiff's vascular thoracic outlet syndrome had resolved. The ALJ improperly conflated vascular and neurogenic thoracic outlet syndrome. Consequently, the ALJ failed to provide proper rationale to reject the multiple opinions that Plaintiff was disabled. The Court recommends that Plaintiff's appeal be granted, the decision of the Commissioner be vacated, and the matter be remanded for further proceedings.

II. Procedural Background

On March 28, 2012, Plaintiff filed an application for SSI and DIB under the Act. (Tr. 143–59). On May 7, 2012, the Bureau of Disability Determination ("state agency") denied Plaintiff's application (Tr. 55–74), and Plaintiff requested a hearing. (Tr. 87–88). On August 8, 2013, an ALJ held a hearing at which Plaintiff—who was represented by an attorney—and a vocational expert ("VE") appeared and testified. (Tr. 29–54). On August 14, 2013, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 11–28). Plaintiff requested review with the Appeals Council (Tr. 7–10), which the Appeals Council denied on November 19, 2014, affirming the ALJ decision as the "final decision" of the Commissioner. (Tr. 1–6). See Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000).

On January 23, 2015, Plaintiff filed the...