Miller v. Comm Social Security

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit

4-19-1999

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Precedential or Non-Precedential:

Docket 98-5433

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Recommended Citation
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Filed April 19, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5433

CHESTER MILLER,

Appellant

v.

COMMISSIONER OF SOCIAL SECURITY,
HON. SHIRLEY CHATER

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 96-cv-04976)
District Judge: Honorable Garrett E. Brown, Jr.

Submitted Under Third Circuit LAR 34.1(a)
March 10, 1999

Before: MANSMANN, SCIRICA and NYGAARD,
Circuit Judges.

(Filed April 19, 1999)

Joel M. Solow, Esquire
Freeman & Bass, P.A.
24 Commerce Street
Newark, New Jersey 07102

Counsel for Appellant
 Faith S. Hochberg, Esquire
United States Attorney
Peter G. O'Malley, Esquire
Assistant United States Attorney
Office of United States Attorney
970 Broad Street
Newark, New Jersey 07102

--Of Counsel--

Barbara L. Spivak, Esquire
Chief Counsel-Region II
Tomasina DiGrigoli, Esquire
Office of the General Counsel
Social Security Administration

Counsel for Appellee

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Chester Miller brings this appeal asserting that the Social
Security Administration erred in determining the onset date
for his disability in awarding disability benefits under the
Social Security Act. While Miller asserts several grounds of
error, the issue necessitating clarification in this published
opinion is whether the Administrative Law Judge (ALJ)
applied the appropriate legal standard in considering the
weight to be afforded a medical report submitted by a
physician who has a history of submitting reports with
virtually identical language in unrelated social security
cases.1 We hold today that while an ALJ may consider the
fact that a report contains duplicative language as one
factor in determining the amount of weight the report
merits, it is erroneous for an ALJ to reject summarily a
medical report based upon duplicative language without
_________________________________________________________________

1. We find that Miller's other assertions of error, which relate to the
testimony of Miller and his wife, lack merit and do not warrant lengthy
discussion. Specifically, we find that the ALJ applied the appropriate
legal standards in evaluating this testimony and that his conclusions on
credibility are supported by substantial evidence.

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considering the relationship of the medical report to the
entire record. Because we find that the ALJ did not
sufficiently consider the merits of one of the medical reports
submitted in this case under this standard, we will remand
this case for further proceedings.

I.

On April 15, 1993, Miller first applied for disability
benefits alleging total disability beginning on December 1,
1991. The Social Security Administration initially allowed
Miller's claim with an onset date of disability of October 2,
1993, based upon the neuropsychological evaluation in a
December 2, 1993, report submitted by Dr. Haydon. Miller
timely requested reconsideration and a hearing before an
ALJ.

A hearing was held before an ALJ on June 30, 1995.
Both Miller and his wife testified at the hearing. The ALJ
determined that Miller was not entitled to benefits for the
period from December 1, 1991, to October 2, 1993, because
he failed to meet his burden of showing that he did not
have the residual functional capacity to perform his prior
work during the relevant time period. The ALJ specifically
found that Miller's subjective complaints of pain during the
relevant time period were not credible because they were
not supported by medical evidence. In addition, the ALJ
afforded minimal weight to three May 1993 medical reports
submitted on behalf of Miller by Doctors Latimer, Pollack,
and Friedman. The ALJ noted that these reports "are
almost identical in their wording and substance to
numerous other reports submitted by the same physicians
in other cases . . ." and that "[t]he striking similarity of
such reports across numerous unrelated cases undermines
their credibility . . . ." See Record at 24. Miller timely filed
an action in the District Court challenging the ALJ's
determination.

The District Court affirmed. On the issue of Dr. Latimer's
May 1993 report, the District Court cited Williams v.
Sullivan, 970 F.2d 1178, 1185 n.5 (3d Cir. 1992), in
holding that the ALJ had the authority to afford this report
little weight based on the submission of virtually identical

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reports by Dr. Latimer in other cases. See District Court
Opinion at 17. Accordingly, because the District Court
found that the ALJ properly weighed all the evidence before
him, the District Court held that the ALJ's determination
was supported by substantial evidence. Miller timely filed
this appeal.

II.

Freeman & Bass, the law firm representing Miller,
apparently has a practice of obtaining one or several
medical reports from a small group of physicians to submit
on behalf of their clients for both workmen's compensation
claims and social security claims. The problem with these
reports, as noted by numerous courts, is that the wording
of the reports is often identical and not individually tailored
to the firm's clients. See, e.g., Williams v. Sullivan, 970 F.2d
1178, 1185 n.5 (3d Cir. 1992); Coria v. Heckler, 750 F.2d
245, 248-49 (3d Cir. 1984)(Garth, J., concurring); Bradley
v. Bowen, 667 F. Supp. 161, 167 n.2 (D.N.J. 1987);
Franklin v. Heckler, 598 F. Supp. 784, 789-90 (D.N.J.
1984); Winston v. Heckler, 585 F. Supp. 362, 367 (D.N.J.
1984). Due to the repetitive nature of the diagnoses in
these reports, some District Courts have held that ALJs are
justified in affording them little weight. See Bradley, 667 F.
Supp. at 167 n.2; Franklin, 598 F. Supp. at 790.

This issue first drew the attention of this Court in Coria
v. Heckler, 750 F.2d 245, 248-49 (3d Cir. 1984)(Garth, J.,
concurring). In Coria, Judge Garth opined in his
concurrence that given the nature of these reports, it is
appropriate for an ALJ to discount the reliability of the
physicians' conclusions and to afford such reports little, if
any, weight. The issue was again raised in Williams v.
Sullivan, 970 F.2d 1178 (3d Cir. 1992), where we affirmed
a finding of no disability. In a footnote, we stated that an
ALJ may not simply reject medical reports due to their
similarity to other reports in unrelated litigation, but that in
weighing the credibility of such reports, an ALJ may
properly consider the fact that the physician made a similar
finding in a separate action and may give little weight to
rote medical findings in case after case. Williams, 970 F.2d
at 1185 n.5. Judge Garth wrote an extensive concurrence

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in Williams opining that an ALJ has the discretion to reject
completely the boilerplate, stereotyped medical reports often
submitted by Freeman & Bass. See Williams, 970 F.2d at
1188-94.

Aside from the foregoing dicta, we have yet to address
specifically the issue of the appropriate weight to be given
these types of reports. In what appears to be the sole
published opinion from our sister courts of appeals on this
issue, the Court of Appeals for the Eleventh Circuit has
held that it is inappropriate for an ALJ to discount a
medical report solely on the basis that certain physicians
"almost invariably conclude that the person being examined
is totally disabled" because such an observation, without
supporting evidence, indicates potential bias. See Miles v.
Chater, 84 F.3d 1397, 1399-1401 (11th Cir. 1996).

While we agree that it is erroneous for an ALJ to reject
every report submitted by a certain physician or lawfirm
simply because the physician often reaches the same
conclusion in every case, an ALJ should be afforded
substantial discretion to give little weight to a medical
report that was carbon-copied from previous litigation
without taking into account the specific applicant's
condition. We accordingly hold today that while an ALJ may
consider the boilerplate nature of a report as one factor in
determining the appropriate weight to afford the report, an
ALJ may not summarily reject a report solely because it
contains some language repetitive of portions of previously
submitted reports. This rule permits an ALJ to afford a rote
report little weight in the appropriate case, but requires the
ALJ to consider all aspects of the case before rejecting the
report based solely on duplicative language.

III.

Applying these principles to this case, we find that the
ALJ properly afforded the reports of Doctors Pollack and
Friedman minimal weight but failed to consider adequately
the merits of Dr. Latimer's report. The ALJ offered the
following explanation in discounting these three reports:

[T]he claimant's attorney submitted several medical
reports which were apparently prepared in connection

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 with a worker's compensation claim. These reports
were submitted by Dr. Latimer, Dr. Pollock, and Dr.
Friedman, in May 1993. These physicians frequently
submit reports in Social Security Administration cases.
Their findings and conclusions frequently contain
virtually identical wording, often refer to impairments
not alleged by the claimant or supported by any
medical evidence, and they rarely vary significantly
from case to case.

* * *

I have fully reviewed the reports of Doctors Pollack,
Latimer, and Friedman. They are almost identical in
their wording and substance to numerous other
reports submitted by the same physicians in other
cases. The striking similarity of such reports across
numerous unrelated cases undermines their credibility
and the objectivity of their findings and conclusions.
Therefore, they have minimal probative value from an
evidentiary standpoint and I accord little weight to
them.

Record at 23-24. Although we see no error in this analysis
with respect to the reports of Doctors Pollack and Friedman
because these reports are simply boilerplate and
unsupported by other evidence in the record, it is unclear,
however, whether the report of Dr. Latimer suffers the same
malady or is likewise unsubstantiated.

The District Court cases that have criticized the reports
of Doctors Pollack and Friedman quote substantive medical
portions of these reports which are virtually identical to
portions of these same physicians' reports on Miller.
Compare Winston, 585 F. Supp. at 364 (quoting Dr. Pollock
report diagnosing "neurological residuals of exposure to
noxious fumes and dust and loud noise, also sciatic
neuritis, and traumatic anxiety psychoneurosis,
attributable to exposure at work"); Franklin, 598 F. Supp.
at 792-96 (reproducing reports by Dr. Pollock containing
same language); Franklin, 598 F. Supp. at 805-16
(reproducing several Dr. Friedman reports diagnosing
patients with varying symptoms as suffering from chronic
bronchitis and hypertensive vascular disease); with Record

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at 197 (Dr. Pollack report diagnosing Miller with
"[n]eurological residuals of exposure to noxious fumes,
dust, loud noise, and post-traumatic anxiety stress disorder
. . . attributable to exposure at work."); Record at 247-50
(Dr. Friedman report diagnosing Miller with chronic
industrial bronchitis and hypertensive cardiovascular
disease). By contrast, a review of the opinions quoting
reports by Dr. Latimer indicates that the sole repetitive
portion of Dr. Latimer's report on Miller is Dr. Latimer's
conclusion that "[t]he patient is totally and permanently
disabled as a psychophysiological working unit." See, e.g.,
Taybron v. Harris, 667 F.2d 412, 414 (3d Cir. 1981)(quoting
Dr. Latimer report concluding "[a]s an industrial unit he
should be considered totally disabled . . . ."); Cruz-Santos v.
Callahan, 1998 WL 175936, *3 (D.N.J. 1998)(quoting Dr.
Latimer report concluding that patient is a "totally and
permanently disabled psychophysiological working unit
. . . ."). Because a physician's ultimate conclusion on
disability is not binding on an ALJ, Dr. Latimer's repetitive
conclusions as to disability do not cast the same degree of
doubt on the non-repetitive substantive portions of his
report as the repetitive diagnoses cast on the overall merits
of the reports of Doctors Pollock and Friedman.

In addition, unlike the reports of Doctors Pollock and
Friedman, portions of Dr. Latimer's report find support in
other evidence in the record. Dr. Latimer's May 21, 1993,
report is very similar to the report of Dr. Haydon from
December 2, 1993, upon which the Commissioner relied in
granting Miller's disability claim. For example, Dr. Latimer
notes that Miller was a poor historian, his cognition was
poor, and his memory, orientation, judgment, insight,
concentration and attention span were questionable. See
Record at 198-99. Dr. Haydon based his diagnosis of
amnestic disorder on Miller's unreliable memory and the
fact that he is a poor historian. Id. at 252-54. Given the
similarities of these reports and the fact that the
Commissioner credited Dr. Haydon's report in awarding
benefits, it cannot be said that Dr. Latimer's report finds no
support in the other medical evidence of record. 2
_________________________________________________________________

2. In addition, at least one Social Security Administration reviewer seems
to have credited Dr. Latimer's report. See Record at 95 (Social Security
Administration reviewer's report)(noting that evidence of organic mental
disorders included Dr. Latimer's May 1993 report diagnosing Miller with
an organic personality disorder).

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We recognize that the ALJ stated in his decision that he
fully reviewed the report of Dr. Latimer. Because Dr.
Latimer's report is, at least in part, substantiated by Dr.
Haydon's report and because there is no indication in the
case law that Dr. Latimer's report contains carbon-copied
diagnoses that do not take into account Miller's condition,
however, we must conclude that the ALJ likely lumped Dr.
Latimer's report with the reports of Doctors Pollack and
Friedman in rejecting it without significant analysis of its
contents. Under these circumstances, the ALJ erred in
affording Dr. Latimer's report little weight based solely on a
perception that his report was a typical Freeman & Bass
boilerplate report.

There are proper reasons for which the ALJ might have
chosen not to credit Dr. Latimer's report. For example, the
ALJ might have given it little weight because it is not
substantiated by medical testing. In addition, the ALJ
might have reasonably determined that Dr. Latimer's report
was insufficient by itself to establish disability starting from
May of 1993. Because the ALJ rejected Dr. Latimer's report
solely on the basis that he perceived it to be a boilerplate
report, however, we cannot say that the ALJ properly
weighed this report. We accordingly shall remand this case
for consideration of the merits of Dr. Latimer's report in
light of our discussion.

IV.

For the foregoing reasons, we will reverse the District
Court's order and remand this case to the District Court
with instruction to remand to the Commissioner of Social
Security for consideration of the relative merits of Dr.
Latimer's report.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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