Opinion
CASE NO. 1:16-cv-00168-YK-GBC
03-17-2017
JULIE COWDEN, Plaintiff, v. CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.
(JUDGE KANE) () REPORT AND RECOMMENDATION TO VACATE THE DECISION OF THE COMMISSIONER AND REMAND FOR FURTHER PROCEEDINGS Docs. 1, 9, 10, 13, 16, 17 REPORT AND RECOMMENDATION
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 and consideration of a spinal cord stimulator because opiates had not relieved her pain. (Tr. 702).
"Post-laminectomy syndrome is also called failed-back-surgery syndrome. It describes pain that persists after a laminectomy, which 'is a type of back surgery performed to relieve nerve compression (radiculopathy) or nerve root injury in the spine caused by disc herniation or spinal canal narrowing (spinal stenosis) related to degenerative changes.' The causes of this condition include spinal fusion, nerve-root injury, and reherniation." Lawson v. Comm'r of Soc. Sec., No. 2:12-CV-0559-JAD-CWH, 2015 WL 2448721, at *2 (D. Nev. May 21, 2015), appeal dismissed (Aug. 31, 2015) (citing Medical Disability Guidelines, Post-Laminectomy Syndrome at 1, http://www.lb7.uscourts.gov/documents/11-61231.pdf (last visited May 19, 2015) (explanation of post-laminectomy syndrome preserved on the Seventh Circuit website)).
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 denying benefits. (Tr. 23-43).
V. Plaintiff Allegations of Error
A. Treating Source Medical Opinions
Plaintiff asserts that the ALJ erred in evaluating the medical opinions. (Pl. Brief at 21-24). "Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2). Medical opinions can come from various sources, including treating physicians, examining physicians, and non-examining physicians. 20 C.F.R. §§ 404.1527(c)(1)-(2). Statements on issues reserved to the Commissioner and statements from sources who are not acceptable medical sources are excluded from the definition of "medical opinion." See 20 C.F.R. §§ 404.1527(a)(2); 404.1527(d). Treating sources are those who have "seen [the claimant] a number of times and long enough to have obtained a longitudinal picture of [the claimant's] impairment" ("treating source rule"). See 20 C.F.R. § 404.1527(c)(2).
The Regulations generally require the ALJ to "give more weight to opinions from [a claimant's] treating sources" ("treating source rule"). 20 C.F.R. § 404.1527(c)(2); see also Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at *36936 ("as long as the treating source is someone entitled to special deference, and all other factors are equal, we will always give more weight to treating source medical opinions than to opinions from other sources"). If "a treating source's opinion on the issue(s) of the nature and severity of [a claimant's] impairment(s)" is both "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and "not inconsistent with the other substantial evidence," the ALJ must "give it controlling weight." Id. Pursuant to Social Security Ruling ("SSR") 96-5p:
Although the overall RFC assessment is an administrative finding on an issue reserved to the Commissioner, the adjudicator must nevertheless adopt in that assessment any treating source medical opinion (i.e., opinion on the nature and severity of the individual's impairment(s)) to which the adjudicator has given controlling weight under the rules in 20 CFR 404.1527(d)(2) and 416.927(d)(2).Id. SSRs are "binding on all components of the Social Security Administration." 20 C.F.R. § 402.35(b)(1). Consequently, a well-supported treating source medical opinion that is not inconsistent with other substantial evidence binds the ALJ. Cf. 20 C.F.R. § 404.1527(e)(2)(i) ("Administrative law judges are not bound by any findings made by State agency medical or psychological consultants, or other program physicians or psychologists"); Bilski v. Kappos, 561 U.S. 593, 607-08, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010) (internal citations omitted) (Court may not interpret "any statutory provision in a manner that would render another provision superfluous").
Here, Dr. Rettig was an acceptable medical source. 20 C.F.R. §404.1527(a). Dr. Rettig was also a treating source because Dr. Rettig treated Plaintiff "a number of times and long enough to have obtained a longitudinal picture of [Plaintiff's] impairment[s]." 20 C.F.R. § 404.1527(c)(2). Dr. Rettig's statement is a medical opinion "on the issue(s) of the nature and severity of [Plaintiff's] impairment(s)," and was not a statement on an issue reserved to the Commissioner. 20 C.F.R. §404.1527(c)(2). Thus, the ALJ must assign Dr. Rettig's opinion controlling weight if it is well-supported and not inconsistent with other substantial evidence. Id.
1. Well-Supported
The ALJ must first determine whether the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. §404.1527(c)(2). The Administration "changed the term 'fully supported' to 'well-supported' because" the Administration:
[A]greed with commenters who pointed out that 'fully supported' was unclear and that, more important, it was an impractically high standard which, even if it were attainable, would essentially make any opinion superfluous. We believe that the new term, 'well-supported,' is more practicable and more reasonable; it should make clear that we will adopt opinions that are well-supported by medically acceptable clinical and laboratory diagnostic techniques unless they are inconsistent with substantial evidence in the record.Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at 36936. Before an ALJ may reject a treating source opinion for an alleged lack of support, the ALJ must make reasonable attempts to recontact the treating source. See SSR 96-5p; Ferari v. Astrue, No. CIV.A. 1:07-CV-01287, 2008 WL 2682507, at *6 (M.D. Pa. July 1, 2008) ("SSR 96-5p emphasizes to the adjudicator the importance of making 'every reasonable effort to recontact such sources for clarification when they provide opinions on issues reserved to the Commissioner and the bases for such opinions are not clear to us.' That is not what the adjudicator did here."). As the Administration explained when it promulgated 20 C.F.R. §404.1527:
Some commenters were concerned that the proposed language of §§ 404.1527(b) and (c), and 416.927(b) and (c) permitted us to discount a treating source's apparently unsupported opinion without recontacting the source, and that the rules placed highly restrictive conditions on obtaining additional information from treating sources.Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01, 36951-36952.
Response: To the contrary, recontact with treating sources to complete the case record and to resolve any inconsistencies in the evidence is one of the principal provisions of this set of rules. See §§ 404.1512(d) and 416.912(d) of these final regulations. Far from being restrictive, the intent of these rules is to require such contacts.
In other cases before the undersigned, Defendant contends that the Regulations no longer require recontact based on 20 C.F.R. §404.1520b. However, while 20 C.F.R. §404.1520b allows an ALJ to request a consultative examination, or obtain information from other sources, rather than recontacting a treating source, 20 C.F.R. §404.1512(e) still provides that "[g]enerally, we will not request a consultative examination until we have made every reasonable effort to obtain evidence from your own medical sources." Id. As the commentary to 20 C.F.R. §404.1520b explains:
[W]e disagree that these rules would permit adjudicators to purchase CEs rather than develop evidence from a person's medical source(s). We have regulations that govern the purchase of CEs, and those regulations provide, in part, that "Generally, we will not request a
consultative examination until we have made every reasonable effort to obtain evidence from your own medical sources." Other CE regulations underscore this point by providing that "If your medical sources cannot or will not give us sufficient medical evidence about your impairment, we may ask you to have one or more physical or mental examinations. Our CE regulations also provide that before purchasing a CE, we will consider your "existing medical reports." It is also important to note that, subject to certain requirements, "your treating source will be the preferred source to do the purchased examination." We believe these regulations provide sufficient safeguards against any potential abuse of the CE process.How We Collect and Consider Evidence of Disability, 77 FR 10651-01.
Moreover, 20 C.F.R. §404.1520b does not automatically exempt the ALJ from recontacting treating sources. The Commentary explains:
[T]here are times when we would still expect adjudicators to recontact a person's medical source first; that is, when recontact is the most effective and efficient way to obtain the information needed to resolve an inconsistency or insufficiency in the evidence received from that source. In the NPRM, we also gave two examples of situations where we would expect adjudicators to contact the medical source first, because the additional information needed is directly related to that source's medical opinion. In fact, we expect that adjudicators will often contact a person's medical source(s) first whenever the additional information sought pertains to findings, treatment, and functional capacity, because the treating source may be the best source regarding these issues.How We Collect and Consider Evidence of Disability, 77 FR 10651-01 (emphasis added). One of the examples in the NPRM was when there was an alleged lack of objective supported for a treating source medical opinion. How We Collect and Consider Evidence of Disability, 76 FR 20282-01. Consequently, recontact is still required when the issue is an alleged lack of support for a treating source medical opinion. Id. Both of these sources are entitled to Auer deference. Auer deference "ordinarily calls for deference to an agency's interpretation of its own ambiguous regulation." Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166, 183 L. Ed. 2d 153 (2012) (citing Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)).
The ALJ erred in finding that Dr. Rettig's opinion was not well-supported. (Tr. 23-43). Dr. Rettig's opinion was supported by 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).
Moreover, the ALJ may not find that a medical opinion lacks support without attempting to recontact the treating source. See SSR 96-5p; Ferari v. Astrue, No. CIV.A. 1:07-CV-01287, 2008 WL 2682507, at *6 (M.D. Pa. July 1, 2008); Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01, 36951-36952. There is no evidence in the record that the ALJ attempted to recontact any treating source. The ALJ lacked substantial evidence to find that the treating sources were not well-supported.
2. Substantial inconsistent evidence
The ALJ next determines whether the opinion is "inconsistent with other substantial evidence." 20 C.F.R. §404.1527(c)(2). The Regulations do not specify what constitutes substantial inconsistent evidence. Id. Even when there is a contradictory medical opinion, the Third Circuit has held that a medical opinion from a non-treating, non-examining source who did not review a complete record was "not substantial." Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000). In Brownawell v. Comm'r Of Soc. Sec., 554 F.3d 352 (3d Cir. 2008), the only other precedential decision addressing an ALJ who relied on a non-treating, non-examining source who did not review a complete record to reject a treating source opinion, the Third Circuit also remanded. See Brownawell, 554 F.3d at 352. In contrast, in Brown v. Astrue, 649 F.3d 193 (3d Cir. 2011), the Third Circuit affirmed where there were two non-treating opinions, one from a source who reviewed the entire record. Id.; see also Kreiser v. Colvin, No. 3:15-CV-1603, 2016 WL 704957, at *13 (M.D. Pa. Feb. 23, 2016) (Noting that expert "reviewed records...through November 2012" and "the record does not appear to contain....treatment records which post date [the expert's] opinion").
The Social Security Administration abolished the policy of non-acquiescence in 1990 with the promulgation of 20 C.F.R. §404.985. Id. An ALJ must follow all precedential Circuit Court decisions if more than 120 days have passed since the decision was issued. See 20 C.F.R. §404.985(b).
In Diaz v. Comm'r of Soc. Sec., 577 F.3d 500 (3d Cir. 2009), there were three non-treating medical opinions and one treating medical opinion, but the Court held that the non-treating medical opinions did not provide good enough reason to reject the treating source medical opinion because they were "perfunctory" and omitted significant objective findings. Id. at 505; see also Boyer v. Colvin, No. CV 1:14-CV-730, 2015 WL 6438870, at *9 (M.D. Pa. Oct. 8, 2015) (Non-examining state agency opinion was insufficient to reject treating source opinion where state agency physician "mischaracterized the record"). Diaz is consistent with SSR 96-6p, which provides that:
The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker. For example, the opinions of physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanations for the opinions, than are required of treating sources.Id.
For this reason, the opinions of State agency medical and psychological consultants and other program physicians and psychologists can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence including any evidence received at the administrative law judge and Appeals Council levels that was not before the State agency, the consistency of the opinion with the record as a whole, including other medical opinions, and any explanation for the opinion provided by the State agency medical or psychological consultant or other program physician or psychologist.
Here, there are no contradictory medical opinions. Defendant and the ALJ rely on Dr. Feigenbaum's statement Plaintiff could perform "light" work. (Def. Brief); (Tr. 23-43). First, pursuant to SSR 96-5p:
From time-to-time, medical sources may provide opinions that an individual is limited to "sedentary work," "sedentary activity," "light work," or similar statements that appear to use the terms set out in our regulations and Rulings to describe exertional levels of maximum sustained work capability. Adjudicators must not assume that a medical source using terms such as "sedentary" and "light" is aware of our definitions of these terms."Id. Moreover, the form Dr. Feigenbaum completed had an option to release Plaintiff to "full-time work" with restrictions or "limited work" with restrictions. (Tr. 403). Dr. Feigenbaum did not indicate that Plaintiff could return to full-time work with the same restrictions at any future time. (Tr. 403). Thus, this opinion specifically contradicts the ALJ's conclusion that Plaintiff could perform a range of full-time light work with restrictions. (Tr. 403). Doc. 10.
In similar cases before the undersigned, Defendant frequently cites Brown v. Astrue, 649 F.3d 193 (3d Cir. 2011); Chandler v. Comm'r of Soc. Sec., 667 F.3d 356 (3d Cir. 2011); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 201 (3d Cir. 2008); Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999); Jones v. Sullivan, 954 F.2d 125 (3d Cir. 1991); Cummings v. Colvin, 129 F. Supp. 3d 209, 216 (W.D. Pa. 2015); and Gallo v. Colvin, No. 4:15-CV-0167, 2016 WL 2936547, at *1 (M.D. Pa. May 13, 2016). None of these cases support Defendant's claims. The ALJ decision in Jones occurred before the SSA promulgated the controlling weight provision, and involved multiple consistent non-treating opinions that supported the ALJ's determination. See Jones, 954 F.2d at 129. In Brown and Gallo, the non-treating, non-examining source reviewed a complete record. Brown, 649 F.3d at 196; Gallo, No. 4:15-CV-0167, 2016 WL 2936547, at *1. In Chandler, Johnson, and Plummer, the ALJ did not reject a treating source medical opinion with non-treating source opinions. In Johnson the treating source medical opinion actually supported the ALJ's decision because it indicated the claimant did not become disabled until after the date last insured. Johnson, 529 F.3d at 201-03 In Plummer, the ALJ relied on three treating source medical opinions to reject another treating source medical opinion. Plummer, 186 F.3d at 431 (Multiple treating providers opined Plaintiff had "no significant functional limitations").
Defendant frequently cites these cases for the first time in objections, which precludes the undersigned Magistrate Judge from meaningfully addressing them. When parties "raise [an] argument...or the first time in her objections to the Magistrate Judge's Report and Recommendations," Courts may "deem this argument waived. Jimenez v. Barnhart, 46 F. App'x 684, 685 (3d Cir. 2002) (citing Laborers' Int'l Union of N.A. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994)). However, the undersigned will address these cases because Defendant often cites them, without acknowledging that Morales and Brownawell are binding, precedential decisions that actually address an ALJ who rejects a treating source medical opinion with only a single non-treating, non-examining medical source opinion and/or lay reinterpretation of medical evidence.
In Chandler there was no treating source medical opinion before the ALJ. Chandler, 667 F.3d at 360-63. There were statements from a nurse practitioner, but a nurse practitioner is not an acceptable medical source. Id. "[O]nly 'acceptable medical sources' can be considered treating sources, as defined in 20 CFR 404.1502 and 416.902, whose medical opinions may be entitled to controlling weight." SSR 06-3p. Consequently, they may never be entitled to controlling weight and are not entitled to the treating source rule. See 20 C.F.R. §404.1527(c)(2); SSR 06-3p. The claimant submitted two medical opinions in support of her claim, but not until after the ALJ decision. Chandler, 667 F.3d at 360. The Third Circuit excluded these from consideration because Plaintiff had no good cause for not submitting them prior to the ALJ decision. Id. (citing Matthews v. Apfel, 239 F.3d 589, 595 (3d Cir. 2001).
Chandler also mischaracterizes the existing case law. Chandler states "[w]e have permitted reliance on records much older than those presenting in this case. See, e.g., Morales v. Apfel, 225 F.3d 310, 312-13 (3d Cir.2000) (upholding a 1997 ALJ decision based on records from 1989 through 1994)." Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). As discussed above, Morales did not uphold the ALJ decision. See Morales v. Apfel, 225 F.3d 310, 312 (3d Cir. 2000) ("Because the Commissioner's decision is not supported by substantial evidence, we reverse the district court.").
Cummings erroneously relies on Chandler without recognizing that Chandler did not involve a treating source medical opinion before the ALJ. Cummings, 129 F. Supp. 3d at 216. The District Court in Cummings wrote that "[i]f Doak actually stood for the rule espoused by Plaintiff, the Court of Appeals in Chandler would have surely attempted to reconcile its reasoning with that of Doak. It had to be aware of Doak, as the district court made it a centerpiece of its reasoning. Yet the Court of Appeals said nothing." Cummings v. Colvin, 129 F. Supp. 3d 209, 216 (W.D. Pa. 2015). The undersigned respectfully disagrees. Doak and Chandler dealt with separate issues. In Chandler, there were no treating source medical opinions before the ALJ, so the only issue was whether the ALJ could rely on an uncontradicted medical opinion from a non-treating, non-examining source. In Doak, there was a treating source medical opinion before the ALJ. Consequently, Chandler's failure to cite Doak cannot be construed to limit Doak's application to cases involving a treating source medical opinion before the ALJ.
The ALJ and the District Court are 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). "When binding precedent squarely addresses an issue, the District Court may not deviate from that precedent based on dicta." Id. (citing Bd. of Trustees of Bricklayers & Allied Craftsmen Local 6 of New Jersey Welfare Fund v. Wettlin Associates, Inc., 237 F.3d 270, 275 (3d Cir.2001) ("To the extent it applied dicta ... the District Court erred")); 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); 20 C.F.R. § 404.985(a)("We will apply a holding in a United States Court of Appeals decision that we determine conflicts with our interpretation of a provision of the Social Security Act or regulations unless the Government seeks further judicial review of that decision or we relitigate the issue presented in the decision").
The Social Security Administration abolished its policy of nonacquiescence in 1990. See Hyatt v. Barnhart, 315 F.3d 239, 242 (4th Cir. 2002) ("The SSA ended its policy of nonacquiescence"); Mannella v. Astrue, No. CV06-469-TUC-CKJ BPV, 2008 WL 2428868, at *14 (D. Ariz. Feb. 20, 2008), report and recommendation adopted in part, rejected in part, No. CIV06-469-TUC-CKJ BP, 2008 WL 2428869 (D. Ariz. June 12, 2008) ("The Social Security Administration followed a 'nonacquiescence' policy for a number of years...The Social Security Administration ("SSA") has since issued regulations which require that the SSA apply a Circuit Court of Appeals decision"); 20 C.F.R. §404.985(a).
Similarly, as the Third Circuit explained in Jamison v. Klem, 544 F.3d 266, 278 n. 11 (3d Cir. 2008):
We also reject the District Court's reliance on Voils v. Hall, 151 Fed.Appx. 793, 795 (11th Cir.2005). We have steadfastly attempted to discourage District Courts as well as attorneys from relying on nonprecedential opinions of this court. See Third Circuit Internal Operating Procedure 5.7 (indicating that "the court by tradition does not cite to its not precedential opinions as authority"). See also, Fallon Elec. Co. v. Cincinnati Insur. Co., 121 F.3d 125, 128 n. 1 (3d Cir.1997) ("[We] do not regard such opinions as binding precedent."). We do not accept these opinions as binding precedent because, unlike precedential opinions, they do not circulate to the entire court before they are filed. Accordingly, not every judge on the court has had an opportunity to express his/her views about the opinion before it is filed.Id. at 278 n. 11. The District Court may not deviate from binding precedent in Brownawell, Morales, Diaz, and Brown based on non-precedential decisions. Brownawell, 554 F.3d at 352; Morales, 225 F.3d at 317; Diaz v. Comm'r of Soc. Sec., 577 F.3d 500 (3d Cir. 2009); Brown, 649 F.3d at 196.
Here, the District Court relied on a decision that is not only not precedential, it is not even a decision of a panel of this court. Accordingly, we will not explain why we think that decision is ill-advised and poorly reasoned.
The case law is consistent with SSR 96-6p, which provides that an ALJ may only credit a non-treating, non-examining source over a treating source in "appropriate circumstances," such as when the non-treating, non-examining source was able to review a "complete case record...which provides more detailed and comprehensive information than what was available to the individual's treating source." Id. This may be only an example of "appropriate circumstances," but the phrase should be construed as requiring a similarly compelling reason. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 223, 128 S. Ct. 831, 838, 169 L. Ed. 2d 680 (2008) ("the general term should be understood as a reference to subjects akin to the one with specific enumeration").
The ALJ is bound by SSR 96-6p and SSR 96-2p. See 20 C.F.R. § 402.35(b)(1) (Social Security Rulings are "binding on all components of the Social Security Administration"). Moreover, Auer deference "ordinarily calls for deference to an agency's interpretation of its own ambiguous regulation." Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166, 183 L. Ed. 2d 153 (2012) (citing Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)). SSR 96-6p is the Social Security Administration's interpretation of 20 C.F.R. §404.1527(c), so it is entitled to deference by the Courts. See SSR 96-6p. In contrast, Defendant's position in this case is nothing more than a "'convenient litigating position,'" or a 'post hoc rationalizatio[n]' advanced by an agency seeking to defend past agency action against attack." SmithKline Beecham Corp., 132 S. Ct. at 2166-67 (quoting Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 213, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) Auer, supra, at 462, 117 S.Ct. 905)).
Morales, Brown, and SSR 96-6p are all consistent with the prohibition on lay reinterpretation of evidence, because a source who reviews a complete record obviates the need for the ALJ to reinterpret medical evidence. See Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269, at *1 (M.D. Pa. Jan. 13, 2016); Tilton v. Colvin, No. 1:14-CV-02219-YK-GBC, 2016 WL 1580003, at *1 (M.D. Pa. Mar. 31, 2016), report and recommendation adopted, No. 1:14-CV-2219, 2016 WL 1569895 (M.D. Pa. Apr. 19, 2016) (citing Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 29-30 (3d Cir. 1986); Ferguson v. Schweiker, 765 F.2d 31, 37, 36-37 (3d Cir. 1985); Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir. 1983); 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); Rossi v. Califano, 602 F.2d 55, 58-59, (3d Cir. 1979); Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979); Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978)). These "cases hold that, even under the deferential substantial evidence standard of review, lay reinterpretation of medical evidence is not inconsistent substantial evidence sufficient to reject an uncontradicted treating source medical opinion." Id. (internal quotation omitted). The Social Security Administration retained, rather than abrogated, this common-law when it promulgated 20 C.F.R. §404.1527(c). Id. (citing Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269 (M.D. Pa. Jan. 13, 2016).
After these cases were decided, the Social Security Administration promulgated regulations addressing medical opinions for the first time. See Standards, 56 FR 36932-01 at 36936. Regulatory enactments retain, rather than abrogate, pre-existing common law unless the enactments are incompatible with existing common-law or there is evidence of a clear intent to abrogate. See Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269 (M.D. Pa. Jan. 13, 2016) (citing United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993); Sebelius v. Cloer, —U.S. —, 133 S.Ct. 1886, 1896, 185 L.Ed.2d 1003 (2013); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); BFP v. Resolution Trust Corp., 511 U.S. 531, 543, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994)). The party asserting that the enactment abrogates common law bears the burden of overcoming this presumption. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 521, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989).
The controlling weight provision, 20 C.F.R. §404.1527(c)(2), codifies the treating source rule and is compatible with Frankenfield, Doak, Ferguson, Kent, Van Horn, Kelly, Rossi, Fowler, and Gober for any uncontradicted, well-supported treating source opinion. See Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269 (M.D. Pa. Jan. 13, 2016). Specifically, 20 C.F.R. § 404.1527(c)(2) provides that, if a treating source opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record" the ALJ must "give it controlling weight." Id. The Regulations do not define other "inconsistent....substantial evidence." Id. Frankenfield, Doak, Ferguson, Kent, Van Horn, Kelly, Rossi, Fowler, and Gober hold that lay reinterpretation of medical evidence does not constitute "inconsistent . . . substantial evidence." See Gober, 574 F.2d at 777; Frankenfield, 861 F.2d at 408; Doak, 790 F.2d at 29-30; Ferguson, 765 F.2d at 36-37; Kent, 710 F.2d at 115; Van Horn, 717 F.2d at 874; Kelly, 625 F.2d at 494; Rossi, 602 F.2d at 58-59; Fowler, 596 F.2d at 603. Frankenfield, Doak, Ferguson, Kent, Van Horn, Kelly, Rossi, Fowler and Gober provide the definition for the regulatory language "inconsistent...substantial evidence." 20 C.F.R. §404.1527(c)(2). Frankenfield, Doak, Ferguson, Kent, Van Horn, Kelly, Rossi, Fowler, and Gober and 20 C.F.R. §404.1527(c)(2) are compatible.
The intent to codify, rather than change, the existing law with 20 C.F.R. §404.1527(c) has been noted by Congress, the Supreme Court, and the Social Security Administration itself. See Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269, at *1 (M.D. Pa. Jan. 13, 2016) (citing Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at 36934 ("[T]he majority of the circuit courts generally ... agree that treating source evidence tends to have a special intrinsic value by virtue of the treating source's relationship with the claimant ... [and] if the Secretary decides to reject such an opinion, he should provide the claimant with good reasons for doing so. We have been guided by these principles in our development of the final rule"); Black & Decker Disability Plan v. Nord, 538 U.S. 822, 823, 123 S.Ct. 1965, 1966, 155 L.Ed.2d 1034 (2003) ("The treating physician rule ... was originally developed by Courts of Appeals ... In 1991, the Commissioner of Social Security adopted regulations approving and formalizing use of the rule in the Social Security disability program")).
Other Circuits have also explicitly retained the prohibition on lay reinterpretation of medical evidence. See Balsamo v. Chater, 142 F.3d 75, 80-81 (2d Cir. 1998); Moss v. Astrue, 555 F.3d 556, 560 (7th Cir. 2009); Burgess v. Astrue, 537 F.3d 117, 131 (2d Cir. 2008); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004); Harbor v. Apfel, 242 F.3d 375 (8th Cir. 2000); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); Wilder v. Chater, 64 F.3d 335, 337-38 (7th Cir. 1995). These cases continued to hold that an ALJ may not reject an uncontradicted treating source medical opinion with only lay reinterpretation of medical evidence. Id. When a Court of Appeals issues a decision that the SSA determines is contradictory to the intended interpretation of a regulation, the SSA must issue an Acquiescence Ruling. 20 C.F.R. § 404.985(b)(1) ("We will release an Acquiescence Ruling for publication in the Federal Register for any precedential circuit court decision that we determine contains a holding that conflicts with our interpretation of a provision of the Social Security Act or regulations no later than 120 days from the receipt of the court's decision."). More than 120 days has passed since these decisions, and the SSA has not promulgated an Acquiescence Ruling regarding any of these decisions. Cf. Burns v. Colvin, No. 1:14-CV-1925, 2016 WL 147269 (M.D. Pa. Jan. 13, 2016) (Absent a Social Security Ruling, Acquiescence Ruling, or Regulation indicating the SSA's interpretation, SSA's position in this case is "nothing more than a convenient litigating position, or a post hoc rationalization advanced by an agency seeking to defend past agency action against attack") (quoting Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-21667 (2012)).
Congress has since amended the Act to require medical expert review of the medical evidence for any claimant who establishes any medically determinable impairment. See BIPARTISAN BUDGET ACT OF 2015, PL 114-74, November 2, 2015, 129 Stat 584, § 832(a). This change is particularly notable given the context of the other amendments to the Act, which were generally designed to save costs for the Administration. This amendment recognizes that medical evidence requires review by an individual with medical training, rather than lay interpretation. See also North Haven Board of Education v. Bell, 456 U.S. 512, 535, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) ( "Although postenactment developments cannot be accorded 'the weight of contemporary legislative history, we would be remiss if we ignored these authoritative expressions") (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 686 n. 7, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)); (INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)).
Subtitle A, entitled "Ensuring Correct Payments and Reducing Fraud," expands fraud investigation units nationwide, prohibits the Commissioner from considering evidence from medical providers who have been convicted of certain crimes, creates "new and stronger penalties" for Social Security fraud, and requires electronic payroll data to improve efficient administration. Id. §§ 811-831.
The ALJ erred in finding that Dr. Rettig's opinion was inconsistent with other substantial evidence. The non-medical evidence did not contradict Dr. Rettig's opinion. 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's ability to work part-time in no way contradicts medical opinions that she could work part- time, but not full-time. Fargnoli v. Massanari, 247 F.3d 34, 44 (3d Cir. 2001); Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981). Plaintiff reported sporadic and transitory activities in her Function Report and repeatedly reported problems sitting, standing, and bending to her treatment providers. Supra. The Administration promulgated guidance that non-medical evidence, like activities of daily living that contradict the opinion, may provide substantial inconsistent evidence in "extremely rare" cases. See Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at 36936; Torres v. Barnhart, 139 F. App'x 411, 414 (3d Cir. 2005) (ALJ permissibly rejected treating opinion "in combination with other evidence of record including Claimant's own testimony"); Kays v. Colvin, No. 1:13-CV-02468, 2014 WL 7012758, at *7 (M.D. Pa. Dec. 11, 2014); Marr v. Colvin, No. 1:13-cv-2499 (M.D.P.A. April 15, 2015). However, the "non-medical" evidence must be truly "inconsistent" with the opinion. Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at 36936; see also Chunn v. Barnhart, 397 F.3d 667, 672 (8th Cir. 2005) ("the ALJ's decision fails to explain how Chunn's activities and behaviors are inconsistent with Dr. Ziolkow's characterization of her mental capacity."). The non-medical evidence is not inconsistent with the treating source opinions.
Since 2011, Courts in this District have declined to rely on dicta in Chandler, Jones, Brown, or Plummer and granted claimants' appeals in dozens of cases when an ALJ rejects a treating source medical opinion with only lay reinterpretation of medical evidence. In cases before the undersigned alone, the Court has granted claimants' appeal in at least thirty-three cases in just the last eighteen months when an ALJ rejects a treating source medical opinion with only lay reinterpretation of medical evidence.
See, e.g., Ralph v. Colvin, No. 1:14-CV-01230, 2015 WL 2213576, at *16 (M.D. Pa. May 11, 2015); Weinus v. Colvin, No. 1:14-CV-00438, 2015 WL 461850, at *9 (M.D. Pa. Feb. 4, 2015); Miller v. Colvin, No. 3:13-CV-02348, 2014 WL 4457232, at *9 (M.D. Pa. Sept. 10, 2014); Bloomer v. Colvin, 3:13-CV-00862, 2014 WL 4105272, at *5 (M.D.Pa. Aug.19, 2014) (Jones, J.); House v. Colvin, 3:12-CV-02358, 2014 WL 3866072, at *8 (M.D.Pa. Aug.6, 2014) (Kane, J.); Muhaw v. Colvin, CIV.A. 3:12-2214, 2014 WL 3743345, at *15 (M.D.Pa. July 30, 2014) (Mannion, J.); Zerbe v. Colvin, No. 3:12-CV-01831, 2014 WL 2892389, at *9 (M.D. Pa. June 26, 2014); Maellaro v. Colvin, 3:12-CV-01560, 2014 WL 2770717, at *11 (M.D.Pa. June 18, 2014) (Mariani, J.); Russell-Harvey v. Colvin, No. 3:12-CV-00953, 2014 WL 2459681, at *13 (M.D. Pa. May 29, 2014); Vergnetti v. Colvin, No. 3:13-CV-02332, 2014 WL 1515850, at *7 (M.D. Pa. Apr. 18, 2014); Arnold v. Colvin, 3:12-CV-02417, 2014 WL 940205, at *4 (M.D.Pa. Mar.11, 2014) (Brann, J.); Keller v. Colvin, No. 3:12-CV-01502, 2014 WL 658064, at *13 (M.D. Pa. Feb. 20, 2014); Gormont v. Astrue, 3:11-CV-02145, 2013 WL 791455, at *7 (M.D.Pa. Mar.4, 2013) (Nealon, J.); Ames v. Astrue, No. 3:11-CV-1775, 2013 WL 435451, at *19 (M.D. Pa. Feb. 4, 2013); Ennis v. Astrue, No. 4:11-CV-01788, 2013 WL 74375, at *8 (M.D. Pa. Jan. 4, 2013); Kaumans v. Astrue, 3:11-CV-01404, 2012 WL 5864436, at *12 (M.D.Pa. Nov.19, 2012) (Caputo, J.); Troshak v. Astrue, 4:11-CV-00872, 2012 WL 4472024, at *7-8 (M.D.Pa. Sept.26, 2012) (Munley, J.); Shannon v. Astrue, No. 4:11-CV-00289, 2012 WL 1205816, at *14 (M.D. Pa. Apr. 11, 2012); Shedden v. Astrue, 4:10-CV-2515, 2012 WL 760632, at *11 (M.D.Pa. Mar.7, 2012) (Rambo, J.); Gunder v. Astrue, Civil No. 11-300, slip op. at 44-46(M.D.Pa. February 15, 2012) (Conaboy, J.); Dutton v. Astrue, Civil No. 10-2594, slip op. at 37-39(M.D.Pa. January 31, 2012) (Munley, J.) (Doc. 14); Yanchick v. Astrue, Civil No. 10-1654, slip op. at 17-19 (M.D. Pa. April 27, 2011) (Muir, J.) (Doc. 11); Coyne v. Astrue, Civil No. 10-1203, slip op. at 8-9 (M.D. Pa. June 7, 2011) (Muir, J.) (Doc. 21); Crayton v. Astrue, Civil No. 10-1265, slip op. at 38-39 (M.D.Pa. September 27, 2011) (Caputo, J.) (Doc, 17).
See Brown v. Colvin, No. CV 3:14-0100, 2015 WL 7428579, at *3 (M.D. Pa. Nov. 23, 2015); Costanzi v. Colvin, No. 1:14-CV-752, 2015 WL 6786726, at *1 (M.D. Pa. Nov. 6, 2015); Cobourn v. Colvin, No. 1:14-CV-01292-GBC, 2015 WL 5785733, at *1 (M.D. Pa. Sept. 30, 2015; Voorhees v. Colvin, No. 3:13-CV-02583-GBC, 2015 WL 5785830, at *25 (M.D. Pa. Sept. 30, 2015; Davenport v. Colvin, No. 3:14-cv-1295 (M.D. Pa. Sept. 25, 2015); Thanh Tam Vo v. Colvin, No. 1:14-CV-00541-GBC, 2015 WL 5514981, at *4 (M.D. Pa. Sept. 15, 2015); Ciccia v. Colvin, No. 1:14-CV-1552, 2015 WL 5093357, at *1 (M.D. Pa. Aug. 28, 2015); Wilson v. Colvin, No. 3:13-cv-2145 (M.D. Pa. Aug. 2015); Paisley v. Colvin, No. 1:14-CV-1656, 2015 WL 5012463, at *1 (M.D. Pa. Aug. 20, 2015); Moncak v. Colvin, No. 1:14-CV-1378-GBC, 2015 WL 4647610, at *1 (M.D. Pa. Aug. 5, 2015); Ames v. Colvin, No. 3:13-cv-2480-RDM (M.D. Pa. July 14, 2015); Kipp v. Colvin, No. 1:13-cv-2552-MWB (M.D. Pa. May 13, 2015); Kester v. Colvin, No. 3:13-CV-02331, 2015 WL 1932157, at *2 (M.D. Pa. Apr. 21, 2015); Jimenez v. Colvin, No. 3:13-CV-2861 (M.D. Pa. April 14, 2015); Miller v. Colvin, No. 3:13-CV-02594-GBC, 2015 WL 1609671, at *6 (M.D. Pa. Apr. 10, 2015); Dennis v. Colvin, No. 3:13-CV-2537, 2015 WL 1608714, at *1 (M.D. Pa. Apr. 10, 2015); Speese v. Colvin, No. 1:13-2805-JEJ at *1 (M.D. Pa. April 10, 2015); Richardson v. Colvin, No. 1:13-CV-02944-GBC, 2015 WL 1608665, at *7 (M.D. Pa. Apr. 10, 2015; Protzman v. Colvin, No. 3:13-CV-2558, 2015 WL 1605765, at *2 (M.D. Pa. Apr. 9, 2015); Williams v. Colvin, No. 1:14-CV-00557-GBC, 2015 WL 1499804, at *6 (M.D. Pa. Mar. 31, 2015); Eckrote v. Colvin, No. 3:13-CV-02403-GBC, 2015 WL 1471507, at *8 (M.D. Pa. Mar. 31, 2015); Cliff v. Colvin, No. 1:13-CV-02985-GBC, 2015 WL 1499769, at *4 (M.D. Pa. Mar. 31, 2015); Lynch v. Colvin, No. 3:13-cv-2654 (M.D. Pa. March 26, 2015); McKean v. Colvin, No. 1:13-CV-2585, 2015 WL 1201388, at *8 (M.D. Pa. Mar. 16, 2015); Duvall-Duncan v. Colvin, No. 1:14-CV-17, 2015 WL 1201397, at *11 (M.D. Pa. Mar. 16, 2015; Hawk v. Colvin, No. 1:14-CV-337, 2015 WL 1198087, at *2 (M.D. Pa. Mar. 16, 2015); Thompson v. Colvin, No. 3:13-CV-02605, 2015 WL 915484, at *15 (M.D. Pa. Mar. 3, 2015); Sherman v. Colvin, No. 3:14-cv-00386-RDM (M.D. Pa. Feb. 23, 2015; Gonzales v. Colvin, No. 3:13-cv-02620, (M.D.Pa. Feb. 17, 2015); Wilson v. Colvin, No. 3:13-CV-709, 2015 WL 140036, at *1 (M.D. Pa. Jan. 12, 2015); Mazella v. Colvin, No. 3:12-cv-1777-RDM (M.D. Pa. Dec. 8, 2014); Hendrickson v. Colvin, 2014 U.S. Dist. LEXIS 171610, 25-26 (M.D. Pa. Nov. 21, 2014); Kovach v. Colvin, No. 1:13-CV-01626-GBC, 2014 WL 4796367, at *15 (M.D. Pa. Sept. 26, 2014); Gray v. Colvin, No. 3:13-CV-01944-GBC, 2014 WL 4536552, at *1 (M.D. Pa. Sept. 11, 2014); Campanaro v. Colvin, No. 3:12-CV-1527, 2014 WL 4272728, at *24 (M.D. Pa. Aug. 28, 2014). --------
The Court recommends remanding the case for further evaluation of the treating source opinion evidence pursuant to SSR 96-6p, 20 C.F.R. §404.1527(c) and Brownawell, Morales, Frankenfield, Doak, Ferguson, Kent, Van Horn, Kelly, Rossi, Fowler and Gober. See 20 C.F.R. §404.1527(c)(2); SSR 96-6p; Brownawell, 554 F.3d at 352; Morales, 225 F.3d at 317; Gober, 574 F.2d at 777; Frankenfield, 861 F.2d at 408; Doak, 790 F.2d at 29-30; Ferguson, 765 F.2d at 36-37; Kent, 710 F.2d at 115; Van Horn, 717 F.2d at 874; Kelly, 625 F.2d at 494; Rossi, 602 F.2d at 58-59; Fowler, 596 F.2d at 603.
B. Other Allegations of Error
Because the Court recommends remand on these grounds, it declines to address Plaintiff's other allegations. A remand may produce different results on these claims, making discussion of them moot. See LaSalle v. Comm'r of Soc. Sec., No. CIV.A. 10-1096, 2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011).
C. Remedy
Remand, rather than reversal and award of benefits, is the appropriate remedy in this case. See Markle v. Barnhart, 324 F.3d 182, 189 (3d Cir. 2003) ("[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation") (internal quotations omitted)).
VI. Conclusion
The undersigned recommends that the Court vacate the decision of the Commissioner pursuant to 42 U.S.C. § 405(g) and remand the case for further proceedings.
Accordingly, it is HEREBY RECOMMENDED: 1. The decision of the Commissioner of Social Security denying Plaintiff's benefits under the Act be vacated and the case remanded to the Commissioner of Social Security to develop the record fully, conduct a new administrative hearing and appropriately evaluate the evidence. 2. The Clerk of Court close this case.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive
further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.Dated: March 17, 2017
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE