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Cowden v. Colvin

United States District Court, M.D. Pennsylvania

March 17, 2017

JULIE COWDEN, Plaintiff,

          KANE JUDGE




         I. Introduction

         The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Defendant”) denying Plaintiff's application for disability insurance benefits (“DIB”) under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the “Act”) and Social Security Regulations, 20 C.F.R. §§404.1501 et seq., §§416.901 et. seq. (the “Regulations”). This case presents the same issue addressed in Tilton, a recent case before the undersigned and Judge Kane. Tilton v. Colvin, 184 F.Supp.3d 135 (M.D. Pa. 2016). Like in Tilton, the undersigned recommends remand. The undersigned further notes that the Social Security Administration has abolished the treating source rule, the basis for the present recommendation to remand. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01 at 5853 (January 18, 2017) (“we are not retaining the treating source rule”). However, the Court evaluates the ALJ decision based on the Regulations in effect at the time of the decision, and leaves it to the ALJ on remand to apply the new Regulations in the first instance.

         Plaintiff underwent spine surgery during the relevant period, her fourth spine surgery overall. Doc. 10. Post-surgery, she treated with powerful opiates, specifically fentanyl and an escalating dose of Oxycontin. Doc. 10. Providers observed post-surgical objective findings, including decreased lower extremity strength, “getting up and down from chair because of chronic pain, ” “look[ing] miserable as usual, flat affect seems to be near tears frequently, ” decreased sensation, decreased range of motion in the spine, and asymmetric, abnormal, and antalgic gait. (Tr. 541-49, 664, 669, 676, 702). Plaintiff's five spine surgeries and documented post-surgical changes also provide objective support for her complaints. (Tr. 702).

         Multiple treating sources repeatedly opined that Plaintiff had limitations that would allow part-time, but not full-time, work. Doc. 10. No medical opinion contradicts these opinions. The ALJ did not credit these opinions. Doc. 10. The non-medical evidence does not contradict these opinions. Doc. 10. Plaintiff returned to work part-time post-surgery, earning $1, 765.00 in the first quarter of 2012; $1, 597.00 in the fourth quarter of 2012; $1, 623.00 in the first quarter of 2013; $1, 710.00 in the second quarter of 2013; $2.00 in the 3rd quarter of 2013; and $2.00 in the 4th quarter of 2013. Doc. 10. Plaintiff's ability to work part-time does not contradict the opinions that she could work part-time. Doc. 10. Thus, the only way for the ALJ to reject the treating source medical opinion was lay reinterpretation of medical evidence. Id.

         An ALJ may not reject a treating source medical opinion with only lay reinterpretation of medical evidence. See Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269 (M.D. Pa. Jan. 13, 2016) (citing 20 C.F.R. §404.1527(c)(2); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir.1988) (Commissioner could not reject medical opinions “simply by having the administrative law judge make a different medical judgment”); Doak v. Heckler, 790 F.2d 26, 29-30 (3d Cir.1986) (“[n]o physician suggested that the activity Doak could perform was consistent with the definition of light work set forth in the regulations, and therefore the ALJ's conclusion that he could is not supported by substantial evidence”); Ferguson v. Schweiker, 765 F.2d 31, 37, 36-37 (3d Cir.1985); Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir.1983) (“the ALJ's conclusion that appellant is capable of engaging in sedentary activity is merely a function of the ALJ's own medical judgment. As such, his conclusion may not be permitted to stand, for we have pointed out time and again that these kinds of judgments are not within the ambit of the ALJ's expertise”); Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir.1983); Kelly v. R.R. Ret. Bd., 625 F.2d 486, 494 (3d Cir.1980) (“[a]n administrative law judge may not reject professional medical evidence on the basis of his own observation”); Rossi v. Califano, 602 F.2d 55, 58-59, (3d Cir.1979) (ALJ's opinion was “not supported by any medical opinion in this case ... an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence.”); Fowler v. Califano, 596 F.2d 600, 603 (3d Cir.1979) (“[w]e have examined the record for an expert medical opinion that Mrs. Rossi was capable of working ... There is none”); Gober v. Matthews, 574 F.2d 772, 777 (3d Cir.1978)).These cases hold that, even under the deferential substantial evidence standard of review, no reasonable person would reject a supported treating source medical opinion in favor of the ALJ's lay reinterpretation of medical evidence. Id.

         The Court is bound by precedential Third Circuit decisions. See Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269, at *1 (M.D. Pa. Jan. 13, 2016) (citing Kool, Mann, Coffee & Co. v. Coffey, 300 F.3d 340, 355 (3d Cir.2002) (Statements that are “not necessary to the actual holding of the case” are “dicta” and “not binding”); Calhoun v. Yamaha Motor Corp., 216 F.3d 338, 344 n. 9 (3d Cir.2000) (“Insofar as this determination was not necessary to either court's ultimate holding, however, it properly is classified as dictum. It therefore does not possess a binding effect on us pursuant to the 'law of the case' doctrine.”); Chowdhury v. Reading Hosp. & Med. Ctr., 677 F.2d 317, 324 (3d Cir.1982) (“[D]ictum, unlike holding, does not have the strength of a decision 'forged from actual experience by the hammer and anvil of litigation, ' a fact to be considered when assessing its utility in the context of an actual controversy. Similarly, appellate courts must be cautious to avoid promulgating unnecessarily broad rules of law.”) (quotations omitted)). Consequently, the Court finds that the ALJ failed to provide a sufficient reason to reject the treating source opinion.

         “Despite the deference due to administrative decisions in disability benefit cases, “[Courts] retain a responsibility to scrutinize the entire record and to reverse or remand if the [Commissioner]'s decision is not supported by substantial evidence.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981)).The Court recommends that Plaintiff's appeal be granted, the decision of the Commissioner be vacated, and the matter be remanded for further proceedings and proper evaluation of the medical opinions.

         II. Procedural Background

         On November 9, 2012, Plaintiff applied for DIB. (Tr. 166-67). On December 31, 2012, the Bureau of Disability Determination (“state agency”) denied Plaintiff's application (Tr. 106-15), and Plaintiff requested a hearing. (Tr. 125-26). On June 9, 2014, an ALJ held a hearing at which Plaintiff-who was represented by an attorney-and a vocational expert (“VE”) appeared and testified. (Tr. 44-105). On July 18, 2014, the ALJ found that Plaintiff was not entitled to benefits. (Tr. 23-43). On August 22, 2014, Plaintiff requested review with the Appeals Council (Tr. 19-22), which the Appeals Council denied on December 1, 2015, affirming the decision of the ALJ as the “final decision” of the Commissioner. (Tr. 1-7). See Sims v. Apfel, 530 U.S. 103, 107 (2000).

         On January 30, 2016, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On April 4, 2016, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 9, 10). On May 13, 2016, Plaintiff filed a brief in support of the appeal (“Pl. Brief”). (Doc. 13). On July 8, 2016, Defendant filed a brief in response (“Def. Brief”). (Doc. 16). On July 18, 2016, Plaintiff filed a brief in reply (“Pl. Reply”). (Doc. 17). On November 7, 2016, the Court referred this case to the undersigned Magistrate Judge. The matter is now ripe for review.

         III. Standard of Review and Sequential Evaluation Process

         To receive benefits under the Act, a claimant must establish 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 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 ALJ uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520. The ALJ 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. Before step four in this process, the ALJ must also determine Plaintiff's residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(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 the claimant can perform. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability under the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

         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 “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. Relevant Facts in the Record

         Plaintiff, born in 1965, was classified by the Regulations as a younger individual through the date of the ALJ decision. (Tr. 37); 20 C.F.R. § 404.1563. Plaintiff has at least a high school education and past relevant work as a fingerprint clerk, a school aid, and an administrative clerk. (Tr. 36-37). Plaintiff alleges onset on March 1, 2012. (Tr. 28). She testified that she worked as a part-time fingerprint clerk through February 2014 (Tr. 49). Records show earnings of $1, 765.00 in the 1st quarter of 2012; $1, 597.00 in the 4th quarter of 2012; $1, 623.00 in the 1st quarter of 2013; $1, 710.00 in the 2nd quarter of 2013; $2.00 in the 3rd quarter of 2013; and $2.00 in the 4th quarter of 2013. (Tr. at 28, 176, 181-82).

         Plaintiff began experiencing back pain and lower extremity numbness as early as 1986, and underwent lumbar spine surgery in 1991, 1996, and 2006. (Tr. 489, 700-702). June 2010 MRI indicated Tarlov's Cysts, which may or may not cause symptoms in the spine. (Tr. 491). Plaintiff's pain management specialist did not believe Plaintiff's Tarlov's Cysts were causing her continued back symptoms, so she got a second opinion from neurosurgeon Dr. Frank Feigenbaum, M.D. in December of 2011. (Tr. 340, 491). Plaintiff reported sacral pain while sitting that was alleviated by laying down. (Tr. 340). Plaintiff exhibited decreased strength and sensation on examination. (Tr. 341). Dr. Feigenbaum noted that MRI showed “multiple large…cysts within the sacral spinal canal…[t]he larger of the cysts are causing blatant compression of adjacent sacral nerve roots.” (Tr. at 341). On March 13, 2012, Dr. Feigenbaum performed Plaintiff's fourth spine surgery, specifically reoperative laminectomies, treatment and wrapping of cysts, and sacral laminar reconstruction with resorbable plating. (Tr. 387).

         In June of 2012, Plaintiff reported continued symptoms, and underwent wound reexploration and retreatment of the right S3 nerve root Tarlov cyst due to fluid collection at the surgical site. (Tr. 401, 455, 480). Examinations later in June 2012 were largely normal. (Tr. 401, 455). On October 1, 2012, Dr. Feigenbaum indicated that Plaintiff could return to “limited work” with specific lifting, bending, and climbing restrictions. (Tr. 403-04, 530). The form Dr. Feigenbaum completed had an option to release Plaintiff to “full-time work” with restrictions or “limited work” with restrictions. (Tr. 403-04, 530). Dr. Feigenbaum did not indicate that Plaintiff could return to full-time work with the same restrictions at any future time. (Tr. 403-04, 530).

         Plaintiff followed-up with primary care provider Dr. Stephen J. Rettig, M.D. throughout the relevant period. (Tr. 447-48). Dr. Rettig prescribed powerful opiates, specifically Fentanyl and an escalating dose of Oxycontin, and opined in treatment notes that Plaintiff could work part-time. (Tr. 444-48). In December of 2012, Dr. Rettig completed a treating source medical opinion indicating limitations that would allow Plaintiff to work part-time, but not full-time. (Tr. 492-96).

         Plaintiff reported continued pain in February, March, and June of 2013. (Tr. 541-49). She reported “severe pain” exacerbated by sitting for long periods. (Tr. 546). She indicated in June of 2013 that “pressure” in the low back was gone, but had continued discomfort, lower extremity numbness, and “great stress because of chronic pain.” (Tr. 541-49). Dr. Rettig increased amitryptiline for chronic pain and depression and continued Percocet and tramadol. (Tr. 542). In December of 2013, Plaintiff reported breakthrough pain exacerbated by walking long distances and physical examination indicated decreased strength. (Tr. 676). Dr. Rettig increased Oxycontin to 20mg three times a day. (Tr. at 677). In January and February of 2014, Dr. Rettig noted Plaintiff's continued complaints of pain (Tr. 663-69). Examination indicated that Plaintiff was “getting up and down from chair because of chronic pain as we sit and talk.” (Tr. 664). She “look[ed] miserable as usual, flat affect seems to be near tears frequently.” (Tr. 669). Plaintiff reported that the pain was “uncontrollable” and “present all the time.” (Tr. 665). Dr. Rettig noted “chronic pain on high doses of opiates without adequate control, side effects of meds limiting further dosing, will wait on opinion from [the] surgeon before deciding on changing meds.” (Tr. 665).

         In April of 2014, Plaintiff underwent consultation with pain management specialist Dr. Talal Ghazal, M.D., who observed pain, decreased sensation, strength, and range of motion, along with asymmetric, abnormal, and antalgic gait. (Tr. 702). Plaintiff reported pain while sitting, standing, bending, and twisting. (Tr. 702). Dr. Ghazal diagnosed post-laminectomy syndrome[1] and consideration of a spinal cord stimulator because opiates had not relieved her pain. (Tr. 702).

         In April of 2014, Dr. Rettig authored another opinion directly addressing Plaintiff's ability to work on a continuing and regular basis. Dr. Rettig opined that Plaintiff could sit, stand, and walk for less than four hours combined out of an eight hour workday, would need frequent periods of walking around during the work day, should never lift any amount, would need to elevate her legs, was limited in performing postural activities, and would be absent more than four times per month. (Tr. 693-97).

         In June of 2014, Plaintiff appeared and testified to continued constant pain while sitting, standing, and performing other activities, along with side effects from her medications. (Tr. 60-75).

         On July 18, 2014, an ALJ issued the decision rejecting Dr. Rettig's medical opinions and ...

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