Brownawell v. Commissioner of Social Security

• Decision Date: 09 December 2008
• Docket Number: No. 07-4405.,07-4405.
• Citation: 554 F.3d 352
• Parties: Kathy J. BROWNAWELL, Appellant v. COMMISSIONER OF SOCIAL SECURITY.
• Court: U.S. Court of Appeals — Third Circuit

554 F.3d 352

Kathy J. BROWNAWELL, Appellant v. COMMISSIONER OF SOCIAL SECURITY.

No. 07-4405.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) December 2, 2008.

Filed December 9, 2008.

Robert E. Rains, Esq., Disability Law Clinic, Carlisle, PA, for Appellant.

Heather Benderson, Esq., Social Security Administration, Philadelphia, PA, for Commissioner of Social Security.

Before: AMBRO, WEIS, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Kathy Brownawell appeals the District Court's September 28, 2008 order affirming the Commissioner of Social Security's denial of her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. Because the decision to deny benefits was improperly based on a number of erroneous facts and discredits the opinions of two examining doctors based on the opinion of a non-examining psychologist, and because substantial evidence on a fully developed record indicates that Brownawell is disabled, this Court reverses the decision of the District Court and remands with the direction to enter an order directing the payment of benefits.

I.

Brownawell filed an application for SSI on September 25, 2000, stating that she was unable to work due to severe migraine headaches and anxiety. Her claim was denied at the initial level of administrative review and, at Brownawell's request, a hearing was held by Administrative Law Judge Edward Morriss ("ALJ"), at which Brownawell was represented by counsel. At the hearing, Brownawell testified that she suffers from migraine headaches that, combined with depression and anxiety, leave her debilitated for an average of ten to fifteen days per month. The ALJ also heard testimony from a vocational expert and considered treatment notes from Dr. Phillip Grem, Brownawell's longtime treating physician, and evaluations from Dr. Picciotto, an examining state agency psychiatrist, and Dr. Jonathan Rightmyer, a non-examining state agency psychologist. The ALJ issued a decision denying the claim on November 28, 2001. After the Social Security Administration's ("SSA") Appeals Council denied Brownawell's request for review, she filed a complaint pursuant to 42 U.S.C. § 405(g) in the Middle District of Pennsylvania.¹

Brownawell's case was referred to Magistrate Judge Thomas Blewitt, who concluded that the ALJ's decision was not supported by substantial evidence and recommended remand to the ALJ for further proceedings. Specifically, Magistrate Judge Blewitt found that "the ALJ erred in finding that [Brownawell's] treatment history was limited, as this finding is contradicted by frequent visits to her family doctor and multiple visits to the emergency room." Brownawell v. Barnhart, Civ. No. 3:CV-02-1168, slip op. at 12 (M.D.Pa. August 22, 2003). On October 21, 2003, the District Court issued an order adopting Magistrate Judge Blewitt's report and recommendation and remanding Brownawell's case to the SSA "for reconsideration of the evidence, giving proper weight to the testimony of Kathy Brownawell, the treating physician, [Dr. Grem,] the consultative psychiatrist, [Dr. Picciotto,] the non-examining psychologist, [Dr. Rightmyer,] and the vocational expert." Brownawell v. Barnhart, Civ. No. 3:CV-02-1168 (M.D.Pa. August 22, 2003) (order remanding case to SSA).

On July 20, 2004, after a second hearing, ALJ Morriss again found that Brownawell was not entitled to SSI; that decision is the subject of the current appeal. After the Appeals Council denied review, Brownawell filed a second § 405(g) complaint in the Middle District of Pennsylvania. The District Court referred the case to Magistrate Judge Malachy Mannion, who recommended denial of Brownawell's appeal. On September 28, 2007, the District Court issued an order adopting Magistrate Judge Mannion's report and recommendation. Brownawell filed a notice of appeal on November 19, 2007, and this appeal followed.

II.

The District Court had jurisdiction to review the final decision of the Commissioner under 42 U.S.C. § 405(g). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The role of this Court, like that of the District Court, is to determine whether the Commissioner's decision is supported by substantial evidence. See 42 U.S.C. § 405(g) ("The findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. ..."); see also Johnson v. Comm'r of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.2003) (citations and internal quotation marks omitted); see also Johnson, 529 F.3d at 200.

III.

The ALJ's disability determination is not supported by substantial evidence, because he relied on facts that were clearly erroneous in making a decision that failed to give appropriate weight to the opinion of Brownawell's treating physician, Dr. Phillip Grem, and her consulting psychiatrist, Dr. Picciotto, and instead improperly favored the opinion of the non-examining psychologist, Dr. Jonathan Rightmyer.

An ALJ should give "treating physicians' reports great weight, `especially when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time.'" Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.2000) (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). While contradictory medical evidence is required for an ALJ to reject a treating physician's opinion outright, such an opinion may be afforded "more or less weight depending upon the extent to which supporting explanations are provided." Plummer, 186 F.3d at 429.

It is clear that Brownawell's treating physician considered her to be disabled. In an October 26, 2001 letter, Dr. Grem states that "the frequency and severity of [Brownawell's] migraines ... prevent her from working in any type of fixed schedule. ... [T]his illness dominates her life to the extent that I consider her to be disabled." A.R. at 229. This opinion was reiterated in Dr. Grem's May 5, 2003 treatment notes. Id. at 499 ("I did fill out one of [Brownawell's] disability forms ... because of migraines, anxiety, and depression. This diagnosis was supported by a psychological evaluation independently and continues to exist at the current time."). The ALJ rejected Grem's assertions of disability because he considered them "inconsistent with and unsupported by Dr. Grem's longitudinal treatment notes and the record as a whole." A.R. at 303. In support of this decision, the ALJ emphasizes the fact that Dr. Grem "consistently reported in his treatment and progress notes, before and after the date of the opinion, that the headaches were stable and under control as they respond very well to [medication]." Id. This Court has noted, however, that a doctor's observation that a patient is "`stable and well controlled with medication' during treatment does not [necessarily] support the medical conclusion that [the patient] can return to work." Morales, 225 F.3d at 319.

The ALJ asserts that "Dr. Grem specifically stated in the treatment notes dated March 29, 2004 that the claimant's headaches alone are not enough for disability. ... Grem [later refused to complete disability forms because the] headaches were not debilitating and the claimant needed to get a psychiatric opinion for her depression impairment which had been reported as stable." A.R. at 303. This reasoning is wholly unsupported by the record, which shows that Brownawell did not visit Dr. Grem after 2003. The treatment notes to which the ALJ refers were made while Brownawell was visiting another doctor and, with respect to the "headaches alone are not enough for disability" notation, appear to have been taken by a nurse, not a doctor.² A.R. at 544.

In rejecting Dr. Grem's opinion, the ALJ also claims that Brownawell's "longitudinal treatment records document either mild symptoms when at their worst or no symptoms at all when on medication ... [and] contain no indication ... of inability to function." The evidence does not support this proposition. In addition to the previously discussed statements from Dr. Grem, including the letter stating that Brownawell is bedridden about four days a week, medical records reflect that Brownawell's migraines were of such a severity that she twice had to visit the emergency room—once on November 14, 2000 and again on May 13, 2001—to receive intravenous medication. A.R. at 208-215 (records from first ER visit), 222-228 (records from second ER visit).

The ALJ's decision to discredit Dr. Picciotto, the consultative psychological examiner who evaluated Brownawell in December 2000, is similarly improper. Dr. Picciotto provided a medical source statement which indicated that Brownawell "had poor ability (no ability) [sic] to function in several areas." A.R. at 303. The ALJ discounted this finding because it "was inconsistent with and unsupported by the text of the evaluation and the clinical signs and findings in the remaining medical record." Id. In support of this contention, the ALJ notes that Dr. Picciotto "stated that [Brownawell] has no ability to maintain attention or concentration[, but] he reported in the text of the evaluation that [she] has good focus, good attention, and good concentration." These assessments are not necessarily contradictory, however, as one assessment was describing Brownawell's condition at the time of Dr. Picciotto's examination and the other reflected Dr. Picciotto's assessment of Brownawell's ability to function in a work setting. As discussed supra, this Court has admonished ALJs who have used such reasoning, noting the distinction between a doctor's notes for purposes of treatment and that doctor's ultimate opinion on the claimant's ability to...