Opinion
Civil Action No. 03-6501.
September 13, 2004
MEMORANDUM AND ORDER
Viola Heree Rutkowski seeks judicial review of the Social Security Administration's decision denying her claim for disability benefits. United States Magistrate Judge Linda Caracappa, in a May 27, 2004 Report and Recommendation, recommended the parties' cross motions for summary judgment be denied and the case remanded to the Commissioner of Social Security ("Commissioner"). Neither party filed objections. After careful review of the administrative record and Magistrate Judge Caracappa's Report and Recommendation, the motions for summary judgment are denied and the case is remanded to the Commissioner.
Plaintiff brought this action under U.S.C. §§ 405(g) and 1383(c)(3) for review of the Commissioner's decision to deny her claim for Social Security disability benefits under Title XVI of the Social Security Act. The scope of judicial review is whether the Commissioner's decision is supported by substantial evidence.
FACTS
Magistrate Judge Caracappa's Report and Recommendation (RR), setting forth a comprehensive summary of the facts, Rutkowski's medical history, and the evidence is adopted in full. Neither party objected to Magistrate Judge Caracappa's summary of the facts and the facts will not be recounted here. The procedural history, however, will be helpful in understanding the case.
On September 22, 2003 the Administrative Law Judge (ALJ) denied disability benefits. The ALJ determined Rutkowski suffered from severe fibromyalgia and depression which prevented her from doing her past jobs. The ALJ, however, found Rutkowski had the residual functional capacity to perform a significant number of light duty jobs. Rutkowski appealed the ALJ's decision to the Appeals Council. The Appeals Council denied Rutkowski's request for review. Thereafter, Rutkowski filed this action.
DISCUSSION
The Social Security Act affords judicial review of any "final decision of the Commissioner of Social Security" in a disability proceeding. 42 U.S.C. § 405(g). The district court reviews the record de novo and may issue an opinion, "affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." Id. The court, however, must find conclusive any of the Commissioner's findings that are supported by substantial evidence. Id. Substantial evidence is "more than a mere scintilla" but somewhat less than a preponderance of the evidence, or "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Jesurum v. Sec'y of the United States Dep't of Health Human Servs., 48 F.3d 114, 117 (3d Cir. 1995).
In denying Rutkowski benefits, the ALJ failed to give her treating physician's uncontradicted opinion proper weight. The opinion of a treating physician should be given great weight, particularly "when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time." Plummer v. Apfel 186 F.3d 422, 429 (3d Cir. 1999). In weighing a physician's opinion, the ALJ must give greater weight to a source who has: (1) examined the patient, (2) treated the patient frequently over a significant time, (3) provided relevant evidence to support the source's opinion, including medical signs and laboratory findings, (4) offers an opinion that is consistent with the record as a whole, and (5) is a specialist in the treatment area. 20 CFR. § 416.927(d)(2004).
Based on these criteria, the ALJ improperly afforded "little" weight to the opinion of Rutkowski's treating physician, Dr. Kerry Miller, M.D. First, Dr. Miller is a specialist. Second, Dr. Miller examined and treated Rutkowski for more than three years and diagnosed Rutkowski with fibromyalgia and depressive disorder on two separate occasions. Third, Dr. Miller's diagnosis of fibromyalgia was reached after a physical examination of Rutkowski and was accompanied by a discussion of Rutkowski's medical signs of fibromyalgia. (R. at 228) Fourth, Dr. Miller's opinion is not contradicted by another physician, or by medical evidence to the contrary. Accordingly, the ALJ's decision that Dr. Miller's medical opinion was entitled to "little" weight is not supported by substantial evidence.
According to the Social Security Administration regulations, "[i]f all of the evidence we receive, including all medical opinion(s), is consistent, and there is sufficient evidence for us to decide whether you are disabled, we will make our determination or decision based on that evidence." 20 CFR 416.927 (2004).
The ALJ also denied benefits, in part, because the Social Security regulations require medical conditions to be substantiated by medical signs and laboratory findings. The ALJ determined Dr. Miller's conclusions regarding Rutkowski's physical capabilities were not based on objective tests, but rather subjective testimony as to what Rutkowski thought she could do. Rutkowski offers little in the way of laboratory or diagnostic evidence in support of Dr. Miller's diagnosis. As the RR notes, however, fibromyalgia is difficult to diagnose because of the lack of objective medical testing to support a diagnosis. (RR, 11).
Despite an absence of diagnostic tests, the record indicates that Rutkowski offered other evidence of her condition, including results of a physical examination, the opinions of other physicians, and personal testimony. Dr. Miller examined Rutkowski and noted she had "multiple tender points in a fibromyalgic distribution including the occipital area, the anterior chest wall, shoulders, elbows, espisacral, trochanteric and femoral condole regions." (R. at 228). Dr. Miller's opinion was also supported by Rutkowski's own testimony. Rutkowski described her pain as continuing" 24 hours a day." (R. at 25). Additionally, Rutkowski offered evidence that her condition was diagnosed and treated by other physicians. (R. at 272-73).
Perhaps the most compelling reason for remand is that the opinion offered by Dr. Miller, as well as the evidence supplied by Rutkowski, is uncontradicted. Social Security regulations state, "[i]f the evidence is consistent but we do not have sufficient evidence to decide whether you are disabled, or, if after weighing the evidence we decide we cannot reach a conclusion about whether you are disabled, we will try to obtain additional evidence under the provisions of §§ 416.912 and 416.919 through 416.919h." 20 CFR. 416.927(c)(3) (2004).
On remand, the ALJ should seek additional medical evidence from Rutkowski's physicians and Rutkowski should be given a consultative examination by another physician. Accordingly, we enter the following:
ORDER
AND NOW, this day of September, 2004, the parties' Cross-Motions for Summary Judgment are denied. United States Magistrate Judge Linda K. Caracappa's Report and Recommendation is approved and adopted and the case is REMANDED to the Commissioner of the Social Security Administration for further proceedings consistent with United States Magistrate Judge Linda K. Caracappa's REPORT and RECOMMENDATION.