1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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

"Miller v. Comm Social Security" (1999). 1999 Decisions. Paper 105.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/105
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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