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Cole v. Colvin

United States District Court, W.D. Pennsylvania

March 31, 2015

LISA A. COLE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION

MAURICE B. COHILL, JR. SENIOR UNITED STATES DISTRICT COURT JUDGE

I. Introduction

This case is before us on appeal from a final decision by the defendant, Commissioner of Social Security (“the Commissioner”), denying Lisa A. Cole’s claim for disability insurance benefits under Title II of the Social Security Act. The parties have submitted cross-motions for summary judgment. For the reasons stated below, we will grant Plaintiff’s motion for summary judgment, deny Defendant’s motion, and remand to the Commissioner for an award of benefits.

II. Procedural History

Lisa A. Cole applied for Disability Insurance Benefits, under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, on March 2, 2011, alleging a disability due to Postural Orthostatic Tachycardia Syndrome (“POTS”) and related symptoms it causes such as lightheadedness, fainting, debilitating headaches, unrelenting fatigue, extreme diaphoresis, joint and muscle pain, and gastrointestinal disturbances, with an alleged onset date of March 8, 2010. Plaintiff's claim was initially denied on July 14, 2011. A timely request for a hearing was filed by Plaintiff on August 9, 2011. A hearing was held before an Administrative Law Judge (“ALJ”) on February 3, 2012, at which Plaintiff was represented by counsel and testified. R. at 31-73. A vocational expert also testified at the hearing.

By decision dated September 27, 2012, the ALJ determined that Plaintiff is not disabled under §§ 216(i) and 223(d) of the Social Security Act. R. at 17-27. The ALJ found that Plaintiff has the following severe impairments: postural orthostatic tachycardia syndrome (POTS), orthostasis and orthostatic intolerance; cardiac dysrhythmias; cervical radiculopathy; degenerative disc disease; obesity; depression; PTSD; and anxiety. R. 19. The ALJ also determined that none of the impairments or combination of impairments meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 19-21.

The ALJ determined that Plaintiff has the residual functional capacity to perform sedentary work, except that the she is required to have a sit/stand option allowing her to change position for one to two minutes every 30 minutes without going off-task; it must entail only occasional postural movements except no crawling or climbing of ladders, ropes, or scaffolds; it must entail no exposure to extreme heat, cold, wetness, humidity, vibration, or hazards such as unprotected heights and moving mechanical parts; it must entail no driving; it must be limited to simple, routine, repetitive tasks; it must entail no production rate pace, but can perform goal oriented work; and must entail no more than occasional interaction with supervisors and coworkers and no interaction with the public. R. 21-26.

In making this determination the ALJ made the following credibility determination:

… the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.

R. 23. In the course of his Opinion, the ALJ further explained that “the claimant’s allegations are so extreme as to appear somewhat implausible, and her treatment records simply do not buttress her allegations.” R. 24. He found that the “claimant’s credibility is, at best, fair.” R. 25.

Considering Plaintiff’s age, education, work experience, and residual functional capacity, the ALJ concluded that she is “capable of making a successful adjustment to other work that exists in significant numbers in the national economy, ” and therefore she is “not disabled.” R. 27.

Plaintiff filed a timely review of the ALJ's determination, which was denied by the Appeals Council on January 30, 2014. R. 1-6. Having exhausted her administrative remedies, Plaintiff filed the instant action seeking judicial review of the final decision of the Commissioner of Social Security denying her application.

III. Standard of Review

The Congress of the United States provides for judicial review of the Commissioner’s denial of a claimant’s benefits. See 42 U.S.C. § 405(g)(2012). This court must determine whether or not there is substantial evidence which supports the findings of the Commissioner. See id . “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.’” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). This deferential standard has been referred to as “less than a preponderance of evidence but more than a scintilla.” Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). This standard, however, does not permit the court to substitute its own conclusions for that of the fact-finder. See id .; Fargnoli v. Massonari, 247 F.3d 34, 38 (3d Cir. 2001) (reviewing whether the administrative law judge’s findings “are supported by substantial evidence” regardless of whether the court would have differently decided the factual inquiry). So long as the ALJ’s decision is supported by substantial evidence and decided according to the correct legal standards, the decision will not be reversed. Id. To determine whether a finding is supported by substantial evidence, however, the district court must review the record as a whole. 5 U.S.C. § 706(1)(F)(2012).

IV. Discussion

Under the SSA, the term “disability” is defined as the:

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 has lasted or can be expected to last for a continuous period of not less than 12 months ...

42 U.S.C. § 423. A person is unable to engage in substantial activity when 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)(1)(A), (d)(2)(A).

In determining whether a claimant is disabled under the SSA, a sequential evaluation process must be applied. 20 C.F.R. § 416.920(a). See McCrea v. Commissioner of Social Security, 370 F.3d 357, 360 (3d Cir. 2004). The evaluation process proceeds as follows. At step one, the Commissioner must determine whether the claimant is engaged in substantial gainful activity for the relevant time periods; if not, the process proceeds to step two. 20 C.F.R. 20 C.F.R. § 416.920(b). At step two, the Commissioner must determine whether the claimant has a severe impairment or a combination of impairments that is severe. 20 C.F.R. § 416.920(c). If the Commissioner determines that the claimant has a severe impairment, he must then determine whether that impairment meets or equals the criteria of an impairment listed in 20 C.F.R., part 404, Subpart P, Appendix. 1. 20 C.F.R. § 416.920(d).

The ALJ must also determine the claimant’s residual functional capacity; that is, the claimant’s ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. 20 C.F.R. § 416.920(e). If the claimant does not have an impairment which meets or equals the criteria, at step four the Commissioner must determine whether the claimant’s impairment or impairments prevent him from performing his past relevant work. 20 C.F.R. § 416.920(f). If so, the Commissioner must determine, at step five, whether the claimant can perform other work which exists in the national economy, considering his residual functional capacity and age, education and work experience. 20 C.F.R. § 416.920(g). See also McCrea, 370 F.3d at 360; Sykes v. Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000).

Plaintiff argues that the ALJ erred in not evaluating all the medical evidence; erred in not giving controlling weight to the expert medical opinions of her treating physician, Ezra M. Kahn, M.D.; erred in relying on the opinions of a non-examining source; and erred in his credibility determination.

Specifically, Plaintiff argues that there is no evidence in Dr. Kahn’s records to establish that the Plaintiff was exaggerating her symptoms and therefore no support for the ALJ’s decision to give only “little weight” to Dr. Kahn’s opinions. Moreover, Plaintiff points to a medical report submitted by Barry L. Alpert, M.D., supporting Plaintiff’s position as to her symptoms and degree of disability. Plaintiff also argues that the ALJ erred in focusing his opinion on whether Plaintiff was disabled as a result of her mental condition and her disorder of the spine, instead of focusing on Plaintiff’s claim that she was disabled due to her POTS diagnosis, and the related disabling symptoms she suffered. Therefore, Plaintiff argues that the ALJ failed to consider all of the evidence when arriving at his credibility determination.

In response to Plaintiff's arguments, Defendant first argues that because the ALJ did not have any medical evidence from Dr. Alpert, such evidence cannot be used to attack the ALJ’s opinion and we are unable to consider it as a matter of law. Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). Defendant also argues that the ALJ properly considered the opinions of Dr. Kahn, and properly rendered his credibility determination. Finally, Defendant argues that substantial evidence supports the ALJ’s conclusion that Plaintiff has the residual functional capacity to perform sedentary work, with certain limitations.

We agree with Defendant that the medical evidence submitted by Dr. Alpert cannot be considered by this Court as it was never considered by the ALJ. Dr. Alpert prepared medical evidence dated September 18, 2012, and November 29, 2012. R. 345-346 & 348-349. The ALJ issued his opinion on September 27, 2012. Both reports were submitted to the Appeals Council. Plaintiff could have, but did not, submit the first of Dr. Alpert’s reports to the ALJ before he issued his decision. The second report was issued after the decision and to the extent Dr. Alpert’s evidence concerns Plaintiff’s condition in the time period after the ALJ issued his decision, it is not relevant to our review of the ALJ’s decision.

It is understandable why counsel points to Dr. Alpert’s reports in her brief as Dr. Alpert’s evidence appears to indicate that Plaintiff may in fact be disabled due to POTS. Specifically, Dr. Alpert states in his November 29, 2012 report that Plaintiff “continues to be miserable and completely debilitated by her POTS syndrome.” R. 348. He continues, stating:

Her major complaint continues to be lightheadedness and dizziness when she stands, as well as an increase in her headaches. Her blood pressure can be as low as 89 systolic up to 140 systolic. She essentially is bedridden from her condition and very depressed by it.

R. 348. He concludes: “I have never seen anybody so debilitated by her POTS syndrome.” R.

Dr. Alpert’s report supports Ms. Cole’s own testimony and evidence of how she has been affected by her condition. However, as we have stated, none of this evidence was presented to the ALJ, and we cannot review the ALJ’s decision based on evidence that was never submitted to him. As Defendant stated, in light of Dr. Alpert’s medical evidence indicating that Plaintiff is disabled, the remedy is for her to file a new application for benefits.

We turn now to a consideration of the ALJ’s assessment of the medical evidence. Plaintiff argues that the ALJ erred in not giving controlling weight to her treating source’s opinion, and erred in relying on the non-examining source’s opinion. She further argues that the ALJ erred in not fairly considering her diagnosis of POTS as the primary cause of her alleged disability. In general, Plaintiff also argues that the ALJ failed to consider all of the evidence when arriving at his credibility determination, specifically noting that there is no evidence in her treating source’s records indicating that she was exaggerating her symptoms.

This is a difficult case as it apparent that the ALJ’s opinion is thorough and attempts to consider all the evidence in a comprehensive manner in arriving at this ultimate determination. However, a careful review of the medical evidence in comparison to the ALJ’s consideration of the evidence reveals that the Plaintiff’s medical evidence supports her treating doctor’s opinion.

A. Evaluation of the Medical Evidence

As the finder of fact, the ALJ is required to review, properly consider and weigh all of the medical records provided concerning the claimant’s claims of disability. Fargnoli, 247 F.3d at 42, citing Dobrowolsky v. Califano, 606 F.2d 403, 406-07 (3d Cir.1979). “In doing so, an ALJ may not make speculative inferences from medical reports.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999), citing Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981). “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.’” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.2000), quoting Plummer, 186 F.3d at 429 (citations omitted). While an ALJ may reject a treating physician’s assessment, he may do so “‘outright only on the basis of contradictory medical evidence’ and not due to his or her own credibility judgments, speculation or lay ...


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