United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION TO VACATE THE DECISION OF
THE COMMISSIONER AND REMAND FOR FURTHER PROCEEDINGS Docs. 1,
9, 10, 13, 16, 17
B. COHN UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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.
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
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
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).
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.
Standard of Review and Sequential Evaluation Process
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. §
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).
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).
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)).
Relevant Facts in the Record
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,
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.
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).
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).
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).
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 and consideration of a spinal cord
stimulator because opiates had not relieved her pain. (Tr.
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).
of 2014, Plaintiff appeared and testified to continued
constant pain while sitting, standing, and performing other
activities, along with side effects from her medications.
18, 2014, an ALJ issued the decision rejecting Dr.
Rettig's medical opinions and ...