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SMITH v. BARNHART

July 1, 2004.

THOMAS SMITH
v.
JO ANNE B. BARNHART, Commissioner of Social Security.



The opinion of the court was delivered by: CHARLES WEINER, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Thomas Smith ("Smith") seeks judicial review under 42 U.S.C. § 1383(c)(3) of the decision of the Commissioner of Social Security, who found that plaintiff was not entitled to Social Security Income ("SSI") under title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1381-1383f. Presently before the court are the parties' cross-motions for summary judgment. For the reasons which follow, the motion of the defendant will be denied, the motion of the plaintiff will be granted and the case will be remanded for further proceedings.

STANDARD OF REVIEW

  When reviewing a denial of a claimant's application for SSI, a reviewing court applies the "substantial evidence" standard. See 42 U.S.C. § 405 (g); Burns v. Barnhart, 312 F.3d 113 (3d Cir. 2002). "Substantial evidence is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate'." Ventura v. Shala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). This court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).

  PROCEDURAL HISTORY

  Smith protectively filed an application for SSI on October 17, 2000, alleging disability since December 10, 1992 due to a work-related injury which, he argues, resulted in a permanently disabling back injury. R-12. After his application was initially denied, Smith requested and was granted a hearing before an Administrative Law Judge ("ALJ") on February 27, 2003. Id. After reviewing the evidence and hearing testimony from Smith and a vocational expert, the ALJ determined that Smith was not eligible for SSI. Specifically, the ALJ found that the plaintiff suffers from severe impairments of his lower back and left hip but that he did not have an impairment listed in, or medically equal to one listed in, Appendix P, Subpart P, regulations No. 4. R. 19. The ALJ also found that although plaintiff could not perform his past work as a laborer, Smith retained the residual functional capacity to perform "light" work activity with the following additional restrictions: "he should not use his left foot for repetitive movements such as operation foot controls or pushing and pulling; he can perform no more than occasional climbing, balancing, bending, kneeling, crouching, or crawling; he can perform simple grasping with his dominant left hand no more than occasionally, but can use both hands for fine manipulation; he should avoid concentrated (frequent) exposure to temperature extremes, wetness, humidity, vibration, and hazards such as moving machinery and unprotected heights; and he is limited to simple, routine tasks." R-20.

  At his hearing before the ALJ, Smith testified that he "can stand for about 10 minutes" before it gets "really, really, really bad." R-65. Smith also testified that he could sit for "[m]aybe 10 minute[s] at the most and three minute[s] sometime[s]." Id. The ALJ noted for the record that Smith alternated between sitting and standing during the course of the hearing. R-65.

  Smith also testified that Dr. L. Wolf, a doctor with Jacobson Tabby Associates,*fn1 was his treating physician. On February 23, 2000, Dr. Wolf completed a Department of Public Welfare ("DPW") form on which he checked a box, indicating that Smith was permanently disabled. His primary diagnosis was that Smith suffered from left side arthritis, disc disease, left hip disease. His secondary diagnosis noted radiculopathy. R-193.

  On October 4, 2000, Dr. Wolf completed a second DPW form, again indicating that Smith was permanently disabled. His primary diagnosis indicated that Smith suffered from left side degenerative joint disease and severe lower back pain. Secondary diagnosis presented radicular pain as well as an altered unstable gait. R-191.

  On July 31, 2001, Smith underwent an x-ray which presented, among other things, marked degenerative disc disease at L4-5. R-270.

  In his motion for summary judgment, Smith argues, inter alia, that the ALJ erred by not affording substantial weight to his treating physician's opinion that Smith was permanently disabled. Smith also argues that the ALJ mistook or misinterpreted the x-ray from July 31, 2001 that showed marked degenerative disc disease at L4-5, R-270, which corroborated the treating physician's opinion that Smith was permanently disabled. DISCUSSION

  A treating physician's opinion will be given controlling weight when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 416.927(d)(2). An ALJ may reject a treating physician's opinion outright only on the basis of contradictory medical evidence, but may afford a treating physician's opinion more or less weight depending upon the extent to which supporting explanations are provided." Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). "Form reports in which a physicians's obligation is only to check a box or fill in a blank are weak evidence at best . . . where these so-called reports [residual functional capacity reports] are unaccompanied by thorough written reports, their reliability is suspect." Mason v. Shalala, 994 F.2d 1058, 1065 (3rd Cir. 1993) (quoting Brewster v. Heckler, 786 F.2d 581, 585 (3rd Cir. 1986)) (internal quotations omitted).

  Dr. Wolf was plaintiff's treating physician. Accordingly, upon a showing that his opinions were "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record," Dr. Wolf's assessment that plaintiff was permanently disabled due to his left degenerative disc disease should have been given controlling weight.

  However, the ALJ assigned little weight to Dr. Wolf's conclusions because "they are not explained and are not supported by the medical evidence." R. 18. The ALJ gave no further explanation as to why he ...


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