Washburn v. Colvin, CASE NO. 1:15-cv-00674-CCC-GBC

• Decision Date: 21 September 2016
• Docket Number: CASE NO. 1:15-cv-00674-CCC-GBC
• Parties: LYNNE H. WASHBURN, Plaintiff, v. CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

LYNNE H. WASHBURN, Plaintiff, v. CAROLYN W. COLVIN,COMMISSIONER OF SOCIAL SECURITY, Defendant.

CASE NO. 1:15-cv-00674-CCC-GBC

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

September 21, 2016

(CHIEF JUDGE CONNER)

(MAGISTRATE JUDGE COHN)

REPORT AND RECOMMENDATION TO VACATE THE DECISION OF THE COMMISSIONER AND REMAND FOR FURTHER PROCEEDINGS

Docs. 1, 8, 9, 12, 13, 14

REPORT AND RECOMMENDATION

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Defendant") denying the application of Lynne H. Washburn ("Plaintiff") for disability insurance benefits ("DIB") and supplemental security income ("SSI") 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.¹ (the "Regulations"). Plaintiff submitted a treating source opinion that was supported by objective medical findings. Doc. 9. The only evidence inconsistent with this opinion, aside from the ALJ's lay reinterpretation of evidence, were two non-treating, non-examining medical opinions from sources who did not review a complete record. Doc. 9. Several cases pending before or recently reviewed by the undersigned present a common issue: whether an opinion from a non-examining, non-treating source who did not review a complete record constitutes substantial inconsistent evidence to assign less than controlling weight to a treating source medical opinion.²

The ALJ "must...adopt" any medical opinion entitled to controlling weight. SSR 96-5p. The Regulations afford special deference to treating sources ("treating source rule").³ The ALJ must assign controlling weight to any well-supported treating source medical opinion unless the ALJ identifies substantial inconsistent evidence. See 20 C.F.R. §404.1527(c)(2). The Third Circuit consistently holds that lay reinterpretation of medical evidence is not substantial evidence to decline to adopt a treating source medical opinion. Burns v. Colvin, No. 1:14-CV-1925, 2016WL 147269 (M.D. Pa. Jan. 13, 2016) (internal citations omitted). The Regulations retained, rather than abrogated, this precedent. Id. Thus, the ALJ may not assign less than controlling weight to a well-supported treating source medical opinion with lay reinterpretation of medical evidence. The Third Circuit has also 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).⁴ 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.

Brown is the only precedential Third Circuit case since the Social Security Administration ("SSA") codified the controlling weight provision in 1991 that affirms an ALJ who credits a non-treating medical opinion over a treating source medical opinion. Other cases frequently cited by Defendant, 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); and Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999), do not address this issue. In Chandler, there were no treating source medical opinions before the ALJ. In Johnson, the treating source medical opinion supported the ALJ's denial. In Plummer, the ALJ rejected one treating opinion with three other treating opinions. Consequently, the relevant Third Circuit cases are Morales, Brownawell, Diaz, and Brown.

This 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"). SSR 96-6p is consistent with SSR 96-2p, which provides that "in cases at the administrative law judge (ALJ) or Appeals Council (AC) level, the ALJ or the AC may need to consult a medical expert to gain more insight into what the clinical signs and laboratory findings signify in order to decide whether a medical opinion is well-supported or whether it is not inconsistent with other substantial evidence in the case record." Id.

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. Read together, 20 C.F.R. §404.1527(c)(2), SSR 96-6p, SSR 96-5p, Morales, Brownawell, and Brown indicate that, generally, the ALJ will lack substantial evidence to assign less than controlling weight to a treating source opinion with only lay reinterpretation of medical evidence or an opinion from a non-treating, non-examining source who did not review a complete record. Harmonizing the Regulations, case law, SSRs, and other sources of authority into a consistent statement of the law regarding the treating physician rule reflects "the need for efficient administration of an obligatory nationwide benefits program" given "more than 2.5 million claims for disability benefits [filed] each year" because "the treating physician rule works to foster uniformity and regularity in Social Security benefits determinations made in the first instance by a corps of administrative law judges." Black & Decker Disability Plan v. Nord, 538 U.S. 822, 833, 123 S. Ct. 1965, 1971, 155 L. Ed. 2d 1034 (2003) (internal citations omitted). The "massive unexplained differences in the rate at which ALJs grant or deny benefits" heightens the need for the Courts to articulate clear rules. Harold J. Krent & Scott Morris, Inconsistency and Angst in District Court Resolution of Social Security Disability Appeals at 5 (Chi.-Kent Coll. of Law, Research Paper No. 2014-30, 2014), available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=2530158.

Here, the non-examining, non-treating sources reviewed only about fifty pages of medical records. (Tr. 304-55). About three hundred pages of medical records were submitted after the non-examining, non-treating opinions. (Tr. 365-663). The records reviewed by these sources indicate that Plaintiff was not yet using a cane. (Tr. 304-55). After the opinions were authored, Plaintiff began reporting that she needed to use a cane, and her treating source opined that it was necessary. (Tr. 583). The ALJ failed to include use of a cane in the RFC, did not explain why the cane usage was excluded, and did not elicit vocational expert testimony regarding the use of a cane. Doc. 9.

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 March 2, 2012 and August 28, 2012, Plaintiff applied for DIB and SSI, respectively. (Tr. 185-96). On June 12, 2012, the Bureau of Disability Determination ("state agency") denied Plaintiff's DIB application (Tr. 119-28), and Plaintiff requested a hearing. (Tr. 133-34). On August 15, 2013, an ALJ held a hearing at which Plaintiff—who was represented by an attorney—and a vocational expert ("VE") appeared and testified. (Tr. 53-118). On August 22, 2013, the ALJ found that Plaintiff was not entitled to benefits. (Tr. 34-52). Plaintiff requested review with the Appeals Council (Tr. 32--33), which the Appeals Council denied on March 20, 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 April 6, 2015, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On June 5, 2015, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 8, 9). On July 20, 2015, Plaintiff filed a brief in support of the appeal ("Pl. Brief"). (Doc. 12). On August 24, 2015, Defendant filed a brief in response ("Def. Brief"). (Doc. 13). On September 4, 2015, Plaintiff filed a brief in reply ("Pl. Reply"). (Doc. 14). On January 11, 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...