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Brownawell v. Commissioner of Social Security

December 9, 2008

KATHY J. BROWNAWELL, APPELLANT
v.
COMMISSIONER OF SOCIAL SECURITY



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 05-cv-02076) District Judge: Honorable Yvette Kane.

The opinion of the court was delivered by: Van Antwerpen, Circuit Judge

PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) December 2, 2008

Before: AMBRO, WEIS, and VAN ANTWERPEN, Circuit Judges.

Kathy Brownawell appeals the District Court's September 28, 2007 order affirming the Commissioner of Social Security's denial of her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. Because the decision to deny benefits was improperly based on a number of erroneous facts and discredits the opinions of two examining doctors based on the opinion of a non-examining psychologist, and because substantial evidence on a fully developed record indicates that Brownawell is disabled, this Court reverses the decision of the District Court and remands with the direction to enter an order directing the payment of benefits.

I.

Brownawell filed an application for SSI on September 25, 2000, stating that she was unable to work due to severe migraine headaches and anxiety. Her claim was denied at the initial level of administrative review and, at Brownawell's request, a hearing was held by Administrative Law Judge Edward Morriss ("ALJ"), at which Brownawell was represented by counsel. At the hearing, Brownawell testified that she suffers from migraine headaches that, combined with depression and anxiety, leave her debilitated for an average of ten to fifteen days per month. The ALJ also heard testimony from a vocational expert and considered treatment notes from Dr. Phillip Grem, Brownawell's longtime treating physician, and evaluations from Dr. Picciotto, an examining state agency psychiatrist, and Dr. Jonathan Rightmyer, a non-examining state agency psychologist. The ALJ issued a decision denying the claim on November 28, 2001. After the Social Security Administration's ("SSA") Appeals Council denied Brownawell's request for review, she filed a complaint pursuant to 42 U.S.C. § 405(g) in the Middle District of Pennsylvania.*fn1

Brownawell's case was referred to Magistrate Judge Thomas Blewitt, who concluded that the ALJ's decision was not supported by substantial evidence and recommended remand to the ALJ for further proceedings. Specifically, Magistrate Judge Blewitt found that "the ALJ erred in finding that [Brownawell's] treatment history was limited, as this finding is contradicted by frequent visits to her family doctor and multiple visits to the emergency room." Brownawell v. Barnhart, Civ. No. 3:CV-02-1168, slip op. at 12 (M.D. Pa. August 22, 2003). On October 21, 2003, the District Court issued an order adopting Magistrate Judge Blewitt's report and recommendation and remanding Brownawell's case to the SSA "for reconsideration of the evidence, giving proper weight to the testimony of Kathy Brownawell, the treating physician, [Dr. Grem,] the consultative psychiatrist, [Dr. Picciotto,] the non-examining psychologist, [Dr. Rightmyer,] and the vocational expert." Brownawell v. Barnhart, Civ. No. 3:CV-02-1168 (M.D. Pa. August 22, 2003) (order remanding case to SSA).

On July 20, 2004, after a second hearing, ALJ Morriss again found that Brownawell was not entitled to SSI; that decision is the subject of the current appeal. After the Appeals Council denied review, Brownawell filed a second § 405(g) complaint in the Middle District of Pennsylvania. The District Court referred the case to Magistrate Judge Malachy Mannion, who recommended denial of Brownawell's appeal. On September 28, 2007, the District Court issued an order adopting Magistrate Judge Mannion's report and recommendation. Brownawell filed a notice of appeal on November 19, 2007, and this appeal followed.

II.

The District Court had jurisdiction to review the final decision of the Commissioner under 42 U.S.C. § 405(g). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The role of this Court, like that of the District Court, is to determine whether the Commissioner's decision is supported by substantial evidence. See 42 U.S.C. § 405(g) ("The findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive . . . ."); see also Johnson v. Comm'r of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (citations and internal quotation marks omitted); see also Johnson, 529 F.3d at 200.

III.

The ALJ's disability determination is not supported by substantial evidence, because he relied on facts that were clearly erroneous in making a decision that failed to give appropriate weight to the opinion of Brownawell's treating physician, Dr. Phillip Grem, and her consulting psychiatrist, Dr. Picciotto, and instead improperly favored the opinion of the non-examining psychologist, Dr. Jonathan Rightmyer.

An ALJ should give "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.'" Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). While contradictory medical evidence is required for an ALJ to reject a treating physician's opinion outright, such an opinion may be afforded ...


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