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Harrison v. Berryhill

United States District Court, M.D. Pennsylvania

April 17, 2018


          Munley Judge.


          Martin C. Carlson United States Magistrate Judge.

         I. Introduction

         In this pro se Social Security Appeal we are called upon to review an Administrative Law Judge's (“ALJ”) decision that failed to analyze, address or even acknowledge the existence of a treating source medical opinion which placed restrictions upon the plaintiff that were greater than those found by the ALJ in prescribing a residual functional capacity assessment in this case. This oversight is undisputed in large measure because the Commissioner's counsel, [1] in a commendable display of candor, has identified and conceded this fact, while arguing that the admitted error of the ALJ in failing to even mention this treating source opinion is harmless.

         While we find this to be a close case under harmless error analysis, mindful of the fact that, “[w]here . . . the opinion of a treating physician conflicts with that of a non-treating, non-examining physician, the ALJ may choose whom to credit but ‘cannot reject evidence for no reason or for the wrong reason, '” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)(emphasis added), we conclude that the complete failure to assess or even acknowledge this treating source opinion cannot be deemed harmless. Accordingly, we find that these shortcomings justify a remand of this case for further consideration by the Commissioner. Therefore, for the reasons set forth below, it is recommended that this case be remanded for further consideration and reconciliation of that medical evidence.

         II. Statement of Facts and of the Case

         Alpha Harrison represented himself both before the ALJ and in this appeal. On June 27, 2013, Harrison initially applied for disability insurance benefits, alleging that he had been disabled since March 1, 2013. (Tr. 68, 76-9, 156-7.) Harrison was 37 years old when he submitted this application for disability benefits, making him a younger worker under the Commissioner's regulations at the time of this disability application. (Tr. 40, 68.) At the time of his disability application, Harrison's presenting medical conditions included intestinal malrotation, colonic diverticulosis and the medical consequences of an ostomy surgery. (Tr. 68.)

         Due to his diverticulitis Harrison underwent bowel surgery in March of 2013, which resulted in a colostomy. (Tr. 17.) Harrison later endured a surgical procedure to attempt to reverse his ostomy in late August 2013. (Tr. 302-05.) This procedure was not successful, however, due to severe adhesions of the ascending colon to the liver which made dissection extremely difficult. (Tr. 303-04.) Accordingly, Harrison's ostomy remained in place. (Tr. 304.) It was also reported that a second attempted reversal surgery undertaken in March of 2015 also was not successful. (Tr. 404.)

         This colostomy, and the related medical complications experienced by Harrison due to his diverticulitis, formed the basis for this disability application. With regard to these medical conditions the evidence initially presented to the ALJ provided a contradictory picture of the disabling effects of these medical impairments, a conflicting picture which underscore the importance of a thorough and dispassionate evaluation of all of the medical evidence. Thus, in the wake of Harrison's initial bowel surgery in March of 2013, Dr. Galbreath, Harrison's family doctor, completed a form for the Pennsylvania Department of Public Welfare in June 2013, which indicated that Harrison was temporarily disabled due to his colonic diverticulosis and status post-colostomy. (Tr. 223.) While Dr. Galbreath first noted in June of 2013 that the length of the disability could not be estimated, (Tr. 223), by September of 2013 Dr. Galbreath indicated that Harrison was capable of returning to work with lifting, pushing, and pulling restrictions of no more than 30 pounds. (Tr. 323.)

         In contrast, Harrison's treating surgeon, Dr. Vanita Ahuja, opined in 2015 that Harrison suffered from significantly greater disabilities due to his surgeries, ostomy and related bowel conditions. (Tr. 404-5.) According to an April 7, 2015 treating source medical opinion letter prepared by Dr. Ahuja, the doctor had been treating Harrison for the past three years. During that time Harrison “presented with severe abdominal infection and needed multiple operations.” (Tr. 404.) According to Dr. Ahuja, Harrison “has had multiple operations when he was a child, which makes any further operation in his abdomen difficult [and he] is not able to do any heavy lifting or any exertion or any long walking or standing due to the nature of his previous multiple operations.” (Id.) Dr. Ahuja concluded that:

Due to the nature of the patient's abdominal anatomy, which is malrotated and the colon is in discontinuity he is unable to do any exertional activity at this time. The patient cannot lift anything heavy greater than 10 pounds or walk for long distances without resting or have periods of standing. Since his nature of work requires all of the above, it is difficult for him to pursue his work at this time. We are recommending the patient for full disability.


         At the time that Dr. Ahuja provided this April 2015 opinion letter, Harrison had received a video hearing before an ALJ on January 29, 2015, but the ALJ had not yet issued an opinion on this disability claim. (Tr. 24-66.) Thus, this medical opinion evidence that Harrison suffered a “full disability” was received by the ALJ in a timely fashion prior to the ALJ's decision. Nonetheless, this material medical evidence played no role in that decision even though the ALJ issued this decision in this case on September 14, 2015, some five months after receiving the treating source opinion of Harrison's surgeon, Dr. Ahuja. (Tr. 10-20.)

         Despite having received this treating source opinion months prior to this decision, the ALJ's September 14, 2015 decision makes absolutely no reference to Dr. Ahuja's opinion. Instead, at Step 1 of the sequential analysis applicable to these Social Security claims, the ALJ found that Harrison met the insured status requirements of the Act through December 31, 2017. (Tr.15.) At Step 2 of this process, the ALJ concluded that Harrison suffered from the following severe impairments: diverticulosis, status post colostomy and obesity. (Id.) At Step 3 the ALJ further concluded that none of these ailments met the requirements of a listing under Social Security regulations. (Tr. 16.) The ALJ then prescribed the following residual functional capacity assessment for Harrison concluding that he: “has the [RFC] to lift no ...

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