                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-2009

Brownawell v. Comm Social Security
Precedential or Non-Precedential: Precedential

Docket No. 07-4405




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                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 07-4405


             KATHY J. BROWNAWELL,

                             Appellant

                            v.

     COMMISSIONER OF SOCIAL SECURITY



    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
                (D.C. No. 05-cv-02076)
        District Judge: Honorable Yvette Kane


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

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

              (Filed December 09, 2008)
Robert E. Rains, Esq.
Megan Riesmeyer, Esq.
Anne MacDonald-Fox, Esq.
The Disability Law Clinic
45 North Pitt Street
Carlisle, PA 17103

      Counsel for Appellant

Heather Benderson, Esq.
Office of the General Counsel
Social Security Administration
P.O. Box 41777
Philadelphia, PA 19101

Dennis C. Pfannenschmidt, Esq.
Office of United States Attorney
228 Walnut Street
P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

      Counsel for Appellee



                OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.



                              2
       Kathy Brownawell appeals the District Court’s
September 28, 2007 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

                              3
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

   1
    Once the Appeals Council denies a request for review, the
ALJ’s decision becomes the final decision of the Commissioner
and can be appealed to a district court. Matthews v. Apfel, 239
F.3d 589, 592 (3d Cir. 2001).

                              4
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

                               5
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.” Id. 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

                               6
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 Id. 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.” A.R. at 303. 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


     2
      Throughout his decision, the ALJ mistakenly attributes
statements to Dr. Grem and mischaracterizes Grem’s treatment
notes. For example, Dr. Grem never “reported that the claimant
feels fine[,] is doing great and has no complaints of headaches.”
A.R. at 302. The ALJ also erroneously contends that Dr. Grem
both refused to complete disability forms and indicated that her
symptoms did not warrant treatment with a mental health
specialist. Compare A.R. at 303 (ALJ’s claim), with A.R. at 499
(Grem’s assertion that Brownawell is disabled and that this
determination was supported by a mental health specialist).

                                7
room—once on November 14, 2000 and again on May 13,
2001—to receive intravenous medication. Id. 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 of the claimant’s ability to work. See Morales, 225
F.3d at 319.

        The ALJ ignored the opinions of Dr. Grem and Dr.
Picciotto and instead chose to adopt the opinion of Dr.
Rightmyer, a non-examining psychologist who found that
Brownawell was not disabled. See A.R. at 301. In evaluating
the ALJ’s use of Dr. Rightmyer’s opinion, it must be noted
that the opinion itself is subject to some criticism. Like the
ALJ, Dr. Rightmyer ignores the possibility that Dr. Picciotto

                               8
was not inconsistent in finding that Brownawell has a good
ability to concentrate for the purpose of a medical
examination but no ability to concentrate for the purposes of
steady employment. Dr. Rightmyer also discounts Dr.
Grem’s assertions of disability based on Grem’s own
treatment notes but, as noted supra, a doctor’s notation that a
condition is “stable” during treatment does not necessarily
support the conclusion that the patient is able to work. See
Morales, 225 F.3d at 319. Given these errors and the fact that
this Court has “consistently held that it is improper for an ALJ
to credit the testimony of a consulting physician who has not
examined the claimant when such testimony conflicts with
testimony of the claimant’s treating physician,” the decision
to discredit Dr. Grem and Dr. Picciotto, both of whom
actually examined Brownawell, was improper. Dorf v.
Bowen, 794 F.2d 896, 901 (3d Cir. 1986) (citations omitted).


       Evaluation of the medical evidence as a whole leads to
the conclusion that the ALJ’s determination is not supported
by substantial evidence. In light of this Court’s decisions
holding that a longtime treating physician’s opinion carries
greater weight than that of a non-examining consultant, the
ALJ should not have discredited Dr. Grem’s assessments of
disability. See Morales, 225 F.3d at 317; Dorf, 794 F.2d at
901. The ALJ supports his rejection of Dr. Grem’s opinion of
disability in large part on evidence that does not exist, for
example, the erroneous assertion that, on May 5, 2003, Dr.
Grem stated that Brownawell’s headaches are not enough for
disability.3 A.R. at 303. This mistake, and others like it,


   3
    As discussed supra, this notation was actually made by a
nurse in another physician’s office. See A.R. at 544. That
physician ultimately concluded that it would not be appropriate
to complete a disability form unless Brownawell received a

                               9
indicate that the ALJ’s decision to discredit Dr. Grem was not
supported by substantial evidence. Furthermore, the ALJ
mischaracterizes the evidence that does exist, such as when he
discredits Dr. Grem because of notations indicating that
Brownawell’s condition was “stable” and “controlled,” a
rationale that has been rejected by this Court. See Morales,
225 F.3d at 319.

       The ALJ’s rejection of Dr. Picciotto’s opinion that
Brownawell has no ability to deal with work stresses and
maintain concentration in a work environment was improperly
based on an alleged inconsistency between Picciotto’s
treatment notes and his ultimate evaluation. Dr. Rightmyer’s
assessment, which was the only one adopted unreservedly by
the ALJ, should not have carried such great weight, especially
when compared to the opinion of Dr. Grem, Brownawell’s
longtime treating physician. See Morales, 225 F.3d at 317;
Dorf, 794 F.2d at 901. Furthermore, as discussed supra, Dr.
Rightmyer’s assessment appears to be unjustified based on the
record, as he made errors in logic similar to those made by the
ALJ.

                             IV.

        When reversing the SSA’s decision under 42 U.S.C. §
405(g), this Court “may choose to remand to the [agency] for
a further hearing or simply direct the district court to award
benefits.” Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir.
1984). “The decision to direct the district court to award
benefits should be made only when the administrative record
of the case has been fully developed and when substantial
evidence on the record as a whole indicates that the claimant
is disabled and entitled to benefits.” Id. at 221-22. Such a



“psych” evaluation. Id.

                              10
decision is especially appropriate when the disability
determination process has been delayed due to factors beyond
the claimant’s control. Id.; see also Morales, 225 F.3d at 320.

        The determination that Brownawell was not disabled
came down to the fifth and final step of the SSA’s disability
determination process, at which the agency must establish that
a claimant is capable of performing jobs existing in
significant numbers in the national economy. The ALJ
determined that Brownawell was capable of doing so, despite
the fact that Dr. Grem, Brownawell’s treating physician for
over three years, twice opined that a finding of disability was
justified. A.R. at 229, 499. Dr. Picciotto found that
Brownawell had no ability to perform skills necessary in the
workplace. Id. at 187-89. The only expert opinion to the
contrary was that of Dr. Rightmyer. As discussed supra, Dr.
Rightmyer’s assessment should be given minimal weight as it
suffers from logical errors and is not based on a personal
examination. Brownawell, like the claimants in Podedworny
and Morales, has waited a remarkably long time for a final
decision on her disability application, which was filed eight
years ago. See Podedworny, 745 F.2d at 223 (directing an
award of benefits five years after claimant filed for disability);
Morales, 225 F.3d at 320 (directing an award of benefits ten
years after claimant filed for disability). In Morales, as in the
current case, the claimant “had two hearings before an ALJ
followed by two petitions to the appeals council, two appeals
to the district court, and the present appeal to the court of
appeals. . . . [T]he record is unlikely to change.” 225 F.3d at
320. Thus, as 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




                               11
benefits.4




  4
   We have considered all other arguments made by the parties
on appeal, and we conclude that no further discussion is
necessary.

                             12
