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Neitz v. Colvin

United States District Court, M.D. Pennsylvania

March 27, 2015

CHRISTINE A. NEITZ, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION TO VACATE THE DECISION OF THE COMMISSIONER AND REMAND FOR FURTHER PROCEEDINGS Docs. 1, 7, 8, 14, 19, 26

GERALD B. COHN, Magistrate Judge.

REPORT AND RECOMMENDATION

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying the application of Plaintiff Christine A. Neitz for supplemental security income ("SSI") under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act"). Plaintiff alleges disability as a result of Crohn's disease, deep vein thrombosis, and other physical impairments. Plaintiff's treating physician submitted multiple opinions that she was disabled. The administrative law judge ("ALJ") in this case credited the opinion of a consultative examiner over the opinions of Plaintiff's treating physician. However, the Third Circuit has a well-established preference for treating physicians. An ALJ may reject the opinion of a treating physician in favor of an examining physician who has never treated a claimant, but not for the wrong reason. For instance, Social Security rules prohibit an ALJ from rejecting an opinion from a treating physician because it is on an issue reserved to the Commissioner when the bases for the opinion are not clear unless the ALJ makes every reasonable effort to recontact the treating physician. Here, the ALJ rejected the treating opinion because it was on an issue reserved to the Commissioner and did not provide any basis for its findings. The record does not indicate any attempt to recontact the treating physician. Thus, the ALJ rejected this opinion for the "wrong reason." Given the preference for treating physicians, the Court cannot conclude that the ALJ's findings are supported by substantial evidence. As a result, 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 May 10, 2010, Plaintiff filed an application for SSI under the Act. (Tr. 213-19). On November 17, 2010, the Bureau of Disability Determination denied this application (Tr. 175-176), and Plaintiff filed a request for a hearing on January 21, 2011. (Tr. 205-07). On December 14, 2011 an ALJ held a hearing at which Plaintiff-who was represented by an attorney-and a vocational expert ("VE") appeared and testified. (Tr. 146-74). On January 12, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 177-95). On February 7, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 146-74), which the Appeals Council denied on August 14, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-5).

On October 14, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On December 27, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 7, 8). On April 11, 2014, Plaintiff filed a brief in support of her appeal ("Pl. Brief"). (Doc. 14). On April 30, 2014, the Court referred this case to the undersigned Magistrate Judge. On June 13, 2014, Defendant filed a brief in response ("Def. Brief"). (Doc. 19). On September 26, 2014, Plaintiff filed a brief in reply. (Doc. 26). The matter is now ripe for review.

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is "less than a preponderance" and requires only "more than a mere scintilla." Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

IV. Sequential Evaluation Process

To receive disability or supplemental security benefits, a claimant must demonstrate 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 has a physical or mental impairment of such a severity 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 of substantial 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 Commissioner uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed. See 20 C.F.R. § 404.1520. The Commissioner 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, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e).

The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

V. Relevant Facts in the Record

Plaintiff was born on July 27, 1969 and was classified by the regulations as a younger individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 190). Plaintiff has at least a high school education and no past relevant work. (Tr. 190).

Plaintiff was diagnosed with Crohn's disease and enteritis of her small intestine several years prior to her alleged onset date (Tr. 187). She was hospitalized prior to 2010 for medical conditions and symptoms related to Crohn's disease and enteritis, including nausea, vomiting, abdominal pain, extremity weakness and numbness, and fatigue, and she was treated with various medications and vitamin supplements, as well as a small intestine resection and periodic Remicade injections (Tr. 187, 262-408).

On November 19, 2009, Plaintiff saw her primary care physician, Dr. Charles Manganiello, M.D., for "all of her same problems as in the past, " specifically "Crohn's disease with mal absorption and vitamin deficiency along with magnesium, potassium and zinc deficiency." (Tr. 507). She was "doing better with her vitamin replacement. When she has to take over the counter medications, she can't afford them. As a result, she will have some depressed numbers." (Tr. 507). She was stable and Dr. Manganiello continued her medications. (Tr. 507).

On January 5, 2010, Plaintiff followed-up with her gastroenterologist, Dr. Thomas Castellano, M.D. (Tr. 506). Plaintiff had been on Remicade since December of 2008. (Tr. 506). Plaintiff "was to have colon done but did not show. Has not been compliant in ov, labs, colon." (Tr. 506). Plaintiff explained that she was not getting messages regarding the above because she had separated from her boyfriend. (Tr. 506). Dr. Castellano noted that "compliance has been a major issue and I told Christina that if she has any more issues with noncompliance she will be discharged from practice." (Tr. 506).

On March 16, 2010, Plaintiff followed-up with Dr. Manganiello. (Tr. 505). She was "somewhat noncompliant with meds due to cost." (Tr. 505). Plaintiff had cartilage issues and crepitus in her knees. (Tr. 505). Plaintiff reported "intermittent problems with her bowel, that have stabilized to a certain degree on treatment program." (Tr. 505). Dr. Manganiello could not "palpate any discernable abnormalities" in her abdomen, although there was "some tenderness throughout." (Tr. 505). He noted that there was "not much to change" and continued her medications. (Tr. 505).

On July 13, 2010, Plaintiff followed-up with Dr. Manganiello. (Tr. 998). Plaintiff had tenderness throughout her abdomen, decreased bowel sounds, and "some deformity of ...


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