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Marsico v. Colvin

United States District Court, W.D. Pennsylvania

April 3, 2014



DONETTA W. AMBROSE, Senior District Judge.


In this action, Plaintiff filed an application for disability benefits pursuant to Title II, based in part on mental health impairments. His claim was denied upon hearing, and the Appeals Council denied his request for review. This appeal followed. Present issues surround Plaintiff's diagnosis of bipolar II disorder. For the following reasons, Plaintiff's Motion will be granted, and Defendant's denied. This matter will be remanded for further proceedings.



Judicial review of the Commissioner's final decisions on disability claims is provided by statute. 42 U.S.C. §§ 405(g) 6 and 1383(c)(3) 7. Section 405(g) permits a district court to review the transcripts and records upon which a determination of the Commissioner is based, and the court will review the record as a whole. See 5 U.S.C. §706. When reviewing a decision, the district court's role is limited to determining whether the record contains substantial evidence to support an ALJ's findings of fact. Burns v. Barnhart , 312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate" to support a conclusion. Ventura v. Shalala , 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). If the ALJ's findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson , 402 U.S. at 390.

A district court cannot conduct a de novo review of the Commissioner's decision, or re-weigh the evidence of record; the court can only judge the propriety of the decision with reference to the grounds invoked by the Commissioner when the decision was rendered. Palmer v. Apfel , 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp. , 332 U.S. 194, 196-97, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).


By way of background, prior to the alleged onset of disability, Plaintiff built and managed what counsel describes as a forty-million dollar construction company. Then, in 2002, his youngest son died due to a heroin overdose. In 2005, in conjunction with his psychiatrist, Plaintiff filed a claim under his company's disability policy, referred to herein as UNUM. The claim resulted in litigation, which eventually settled. Plaintiff then instituted the present matter, and claimed a disability onset of January 31, 2003, when Plaintiff was diagnosed with bipolar II disorder. In the interim, another of Plaintiff's son suffered serious traumatic brain injury following a motor vehicle accident, his wife suffered from debilitating depression, and his construction business went into bankruptcy.


Initially, I deal with Plaintiff's objection to the manner in which the ALJ considered the medical evidence. In particular, Plaintiff takes issue with the ALJ's handling of evidence from his treating psychiatrist, who treated Plaintiff for approximately twelve years as of the hearing date, and evidence from non-treating medical sources.

It is well-settled that the report of a treating physician "should be accorded great weight, " particularly if that physician's treatment records or opinion "reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time." Plummer v. Apfel , 186 F.3d 422, 429 (3d Cir. 1999). Our Court of Appeals has "consistently held that it is improper for an ALJ to credit the testimony of a consulting physician who has not examined the claimant when such testimony conflicts with testimony of the claimant's treating physician." Dorf v. Bowen , 794 F.2d 896, 901 (3d Cir. 1986). If rejecting or discrediting competent evidence, the ALJ must explain his reasons for doing so. Martin v. Comm'r of Soc. Sec., No. 13-2150, 2013 U.S. App. LEXIS 24699 (3d Cir. Dec. 12, 2013).

The ALJ's discussion of evidence from Plaintiff's treating psychiatrist, Dr. Hoffman, is sparing at best. The ALJ referred to checkmark forms completed by Dr. Hoffman, apparently in connection with the UNUM litigation, and made very brief reference to her deposition testimony. In so doing, the ALJ first stated that a treating physician is entitled to controlling weight, but not statements of opinion on the ultimate issue of disability. The ALJ then observed that Dr. Hoffman, in a checkmark form, found that Plaintiff had "extreme" limitation of his ability to maintain attention and concentration, and that Plaintiff "does not have capacity to organize, concentrate on project at work for full day." He also observed that Dr. Hoffman "admitted" A state agency expert, Dr. Schnepp, found only moderate limitations. The ALJ gave "substantial weight" to Dr. Schnepp's assessment, and found that Dr. Hoffman's statement represented "at most a moderate limitation." From a series of statements in the record, the ALJ extracted Dr. Hoffman's comment "feels good - looks good" - but did not mention other comments, such as, "unable to maintain the intensity and duration of daily routine." In other words, aside from these brief references, the ALJ does not discuss Dr. Hoffman's notes, reports, or other opinions.

I am perplexed by this overarching omission. The record contains voluminous evidence of Plaintiff's treatment for bipolar II disorder and related issues between 2003 and 2010, as well as Dr. Hoffman's 2011 report responding to Dr. Schnepp's assessment. These records are replete with probative evidence. For example, the ALJ's opinion does not contain a single reference to Plaintiff's multiple medications, which included Wellbutrin, Prozac, Ambien, Buspar, and Lamictal, or the side effects thereof. This, despite the fact that counsel, at the hearing, argued: "[Plaintiff's] inability to work is not actually the result of his ...

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