DICAMILLO v. ASTRUE
Filing
17
ORDER THAT THE COMMISSIONER'S OBJECTIONS (DOC. NO. 16), ARE OVERRULED. JUDGE STRAWBRIDGE'S 7/25/2013 REPORT AND RECOMMENDATION (DOC. NO. 15), IS APPROVED AND ADOPTED. THIS CASE IS REMANDED TO THE COMMISSIONER FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS ORDER. THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 8/7/2013. 8/7/2013 ENTERED AND COPIES E-MAILED.(amas)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANTHONY DICAMILLO
v.
CAROLYN W. COLVIN
:
:
:
:
:
CIVIL ACTION
NO. 12-5438
ORDER
AND NOW, this 7th day of August, 2013, upon careful and
independent consideration of plaintiff Anthony Dicamillo’s brief
and statement of issues in support of request for review (docket
entry # 11), defendant Michael J. Astrue’s 1 response thereto
(docket entry # 12), plaintiff’s reply to that response (docket
entry # 14), the Honorable David R. Strawbridge’s thorough and
well-reasoned July 25, 2013 report and recommendation (“R&R”)
(docket entry # 15), and defendant Carolyn W. Colvin’s objections
thereto (docket entry # 16), and the Court finding that:
(a)
Dicamillo applied for benefits on April 30, 2009
alleging that he was disabled due to “bipolar, depression, and
drug and alcohol addiction”, R. at 169;
1
On February 14, 2013, Carolyn W. Colvin became the Acting
Commissioner of the Social Security Administration and,
therefore, she should be automatically substituted as the
Defendant in this action. See Fed. R. Civ. P. 25(d).
(b)
The state agency initially denied his claim, and he
then requested a hearing, which he received on October 15, 2010,
id. at 34-79;
(c)
The Administrative Law Judge (“ALJ”) issued a
decision on February 8, 2011, finding that Dicamillo was not
disabled, id. at 14-28, and the Appeals Council found no basis to
set aside that decision, id. at 1-4;
(d)
Dicamillo argues that the ALJ erred in four ways:
he (1) failed to follow the “governing law related to substance
abuse”; (2) failed adequately to explain his determination of
Dicamillo’s residual functional capacity (“RFC”) 2; (3) improperly
rejected medical opinion evidence; and (4) failed to explain his
rejection of Dicamillo’s mother’s written statement and
testimony, Pl. Br. at 2-10;
(e)
In his R&R, Judge Strawbridge found that the ALJ
had sufficiently “follow[ed] governing law relating to substance
abuse”, R&R at 13; he had “evaluated the opinion statements
provided by both treating and state agency physicians and
2
“Residual functional capacity is defined as that which an
individual is still able to do despite the limitations caused by
his or her impairment(s).” Burnett v. Comm’r of Soc. Sec.
2
provided an explanation for the weight which he gave to them,”
and “included a thorough discussion of Plaintiff’s very extensive
medical records”, id. at 16; and he did not reject medical
evidence but instead properly evaluated it in light of the other
evidence to determine how much weight to give it, id. at 19;
(f)
Judge Strawbridge thus rejected Dicamillo’s first
three arguments;
(g)
But Judge Strawbridge agreed with Dicamillo’s
fourth argument, that the ALJ rejected his mother’s testimony and
written statement without explaining adequately his reason for
doing so;
(h)
Judge Strawbridge included in his R&R, and we
include here, the whole of the ALJ’s consideration of Dicamillo’s
mother’s testimony:
Claimant’s mother also testified at the
hearing, and noted that claimant watches TV,
shops with her when he is able, and does not
go out much. She also related to seeing her
son in pain daily, and that he rests on and
off. The pain aspects are a bit at odds
with claimant’s relating to his treating
doctor that his pain level drops to 1/10
with medication. However, in general this
testimony was similar to her son’s.
Admin., 220 F.3d 112, 121 (3d Cir. 2000) (internal quotations
omitted).
3
R. at 23-24;
(i)
Judge Strawbridge noted that Dicamillo’s mother had
submitted a “Function Report Adult (Third Party)” in which she
wrote that Dicamillo “sometimes gets anxiety or panic attacks
around people”, R. at 187, does not handle stress well, and “gets
very over-whelmed with any situation that might arise”, id. at
190;
(j)
Judge Strawbridge found significant the ALJ’s
failure to discuss this report in light of the ALJ’s finding at
Step Two that Dicamillo’s mood disorder was a severe impairment,
id. at 16; R&R at 21, and Judge Strawbridge concluded that “Mrs.
Dicamillo’s testimony, if credited, bolsters Plaintiff’s
testimony and may be inconsistent with the ALJ’s RFC
determination”, R&R at 21;
(k)
The ALJ’s cursory description of Dicamillo’s
testimony, including his “failure to make an explicit credibility
determination”, rendered Judge Strawbridge “unable to determine
whether substantial evidence supports the ALJ’s decision”, and so
Judge Strawbridge recommended remanding for further proceedings;
4
(l)
On this point the Commissioner takes issue with
Judge Strawbridge’s report, 3 and we must “make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which” she objects, see
28 U.S.C. § 636;
(m)
Commissioner Colvin raises three objections: first,
she argues that our Court of Appeals “has not held that remand is
warranted where an ALJ fails to discuss a certain piece of
evidence”, Obj. at 1; next, she argues that the ALJ’s function is
“to ensure that there is sufficient explanation of the findings
as to permit ‘meaningful judicial review,’” and so the ALJ did
not commit “legal error” by failing to explain why he did not
credit Mrs. Dicamillo’s testimony, id. at 2-3; and third, she
argues that Judge Strawbridge erred because the task of the
reviewing court “is not to determine whether [the ALJ] explicitly
mentioned every piece of evidence in his opinion . . . but rather
to determine whether the ALJ’s findings were supported by
3
Local Civil Rule 72.1 IV(b) provides that “[a]ny party may
object to a magistrate judge’s proposed findings, recommendations
or report under 28 U.S.C. 636(b)(1)(B) . . . within fourteen days
after being served with a copy thereof” by filing “written
objections which shall specifically identify the portions of the
5
substantial evidence”, id. at 4 (quoting Campbell v. Shalala, No.
93-0181, 1993 WL 452039, at *4 n.3 (E.D. Pa. Nov. 1, 1993));
(n)
These three objections essentially advance the same
contention -- the Commissioner contends that Judge Strawbridge
erred by recommending remand based on the ALJ’s failure to
discuss Mrs. Dicamillo’s testimony or explain his finding that it
was not credible;
(o)
A reviewing court is to determine only whether the
ALJ’s findings are supported by substantial evidence, 42 U.S.C. §
405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005);
and the Commissioner argues that such a conclusion does not
require the ALJ to mention every piece of evidence in the record,
so his failure to discuss Mrs. Dicamillo’s testimony did not
render the findings unsupported by substantial evidence and thus
did not justify remand;
(p)
The Commissioner relies on Fargnoli v. Massanari,
247 F.3d 34 (3d Cir. 2001) for the proposition that our Court of
Appeals “does not expect the ALJ to make reference to every piece
proposed findings, recommendations or report to which objection
is made and the basis for such objections”.
6
of relevant information”, Obj. at 2 (citing Fargnoli, 247 F.3d at
42) (emphasis in Objections attributed to Fargnoli);
(q)
In Fargnoli, the Court of Appeals found that though
the record included “over 115 pages of relevant, probative
treatment notes . . . detailing [the applicant’s] medical
condition and progress”, the ALJ’s decision discussed only “four
diagnostic tests and five treatment notes”, Fargnoli, 247 F.3d at
42;
(r)
In remanding, the Court of Appeals noted that it
did not “expect the ALJ to make reference to every relevant
treatment note”, id.;
(s)
In Hur, our Court of Appeals cited this principle
in finding that substantial evidence supported the ALJ’s decision
even though the ALJ had failed to address x-rays showing
degeneration of the applicant’s spine;
(t)
The Commissioner’s reliance on Hur here is
unavailing, for the evidence the ALJ failed to discuss in Hur was
not probative, as Mrs. Dicamillo’s testimony might be here -- as
the Court explained in Hur, it did not find the x-rays probative
of any disability: “the evidence does not support that the spinal
condition shown in the x-rays was responsible for the disabling
7
pain that she complained of or caused any functional limitations
that affected her ability to work as a cashier”, and the Court
observed that the petitioner’s treating physician “himself seemed
to place no importance on the x-rays”, id. at 133;
(u)
To be sure, Hur emphasized that the ALJ’s decision
need not include “every tidbit of evidence included in the
record”, id., but implicit in this principle is an evaluation of
the probative value of the evidence -- but Hur does not stand for
the proposition that an ALJ may forgo consideration of any piece
of information in the record and still render a decision
supported by substantial evidence;
(v)
Here, as Judge Strawbridge observed, the
information the ALJ failed to consider -- Mrs. Dicamillo’s
testimony regarding the effects of her son’s depression on his
daily functioning -- was significant in light of the ALJ’s
finding that Dicamillo’s mood disorder was a severe impairment 4;
see R&R at 21; R. at 16;
4
The ALJ conducts a five-step analysis to determine whether a
claimant has a disability within the meaning of the Social
Security Act, see 20 C.F.R. § 404.1520; Burnett, 220 F.3d at 118.
Here, at step two, the ALJ found that the claimant’s mood
disorder constituted a severe impairment, but at step three, he
found that the mood disorder did not “meet or medically equal[]
8
(w)
As in Burnett -- where our Court of Appeals vacated
the district court’s order affirming the ALJ’s decision and
remanded for further consideration -- the ALJ here made a
credibility determination regarding the applicant 5 and then failed
to address fully the testimony of a witness -- albeit an
interested one but one in a position to observe her son and
provide more than “tidbits” -- who appeared in part to bolster
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1”, R. at 16. In the analysis in which he found that
Dicamillo’s “mental impairments” did not meet or medically equal
one of the listed impairments, the ALJ wrote,
In making this finding, I have considered
whether the “paragraph B” criteria are
satisfied. To satisfy the “paragraph B”
criteria, the mental impairments must result
in at least two of the following: marked
restriction of activities of daily living;
marked difficulties in maintaining social
functioning; marked difficulties in
maintaining concentration, persistence, or
pace . . . A marked limitation means more than
moderate but less than extreme.
R. at 17.
5
The ALJ found that “the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the above
residual functional capacity assessment”, and wrote, “I find the
claimant’s allegation of total disability to be exaggerated in
light of his stated activities of daily living and the evidence
as a whole, showing inconsistent statements to medical providers
and conservative treatment.” R. at 24.
9
that credibility, see Burnett, 220 F.3d at 122 (“the ALJ made a
credibility determination regarding [the applicant], and these
witnesses were there to bolster her credibility”); and
(x)
Because the ALJ failed to explain “what portion, if
any, of Mrs. Dicamillo’s testimony and submitted statement he
credited, and fail[ed] to make an explicit credibility
determination”, we are unable to determine whether the ALJ’s
decision is supported by substantial evidence;
It is hereby ORDERED that:
1.
The Commissioner’s objections (docket entry # 16)
are OVERRULED;
2.
Judge Strawbridge’s July 25, 2013 report and
recommendation (docket entry # 15) is APPROVED and ADOPTED;
3.
This case is REMANDED to the Commissioner pursuant
to the fourth sentence of 42 U.S.C. § 405(g) for further
proceedings consistent with this Order; and
4.
The Clerk of Court shall CLOSE this case
statistically.
BY THE COURT:
/s/ Stewart Dalzell, J.
10
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