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D ock e t 98-5433

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. e du/thir dc ir c uit_1999/105Filed 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 AppellantFaith 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 th e Social Security Administration erred in determining the on set date for his disability in awarding disability benefits under the Social Security Act. While Miller asserts several g rounds of error, the issue necessitating clarification in thi s published opinion is whether the Administrative Law Judge (AL J) applied the appropriate legal standard in consideri ng the weight to be afforded a medical report submitted by a physician who has a history of submitting reports w ith virtually identical language in unrelated social se curity cases.1 We hold today that while an ALJ may conside r the fact that a report contains duplicative language as one factor in determining the amount of weight the repo rt merits, it is erroneous for an ALJ to reject summar ily a medical report based upon duplicative language with out

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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 appl ied the appropriate legal standards in evaluating this testimony and th at his conclusions on credibility are supported by substantial evidence.

2considering 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 medi cal 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 disabil ity benefits alleging total disability beginning on Dec ember 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. M iller timely requested reconsideration and a hearing befo re 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, b ecause he failed to meet his burden of showing that he did not have the residual functional capacity to perform hi s prior work during the relevant time period. The ALJ speci fically found that Miller's subjective complaints of pain d uring 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 r eports submitted on behalf of Miller by Doctors Latimer, P ollack, and Friedman. The ALJ noted that these reports "are almost identical in their wording and substance to numerous other reports submitted by the same physic ians in other cases . . ." and that "[t]he striking simi larity of such reports across numerous unrelated cases underm ines 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. La timer's May 1993 report, the District Court cited Williams v. Sullivan, 970 F.2d 1178, 1185 n.5 (3d Cir. 1992), i n holding that the ALJ had the authority to afford th is report little weight based on the submission of virtually identical

3reports by Dr. Latimer in other cases. See District Court

Opinion at 17. Accordingly, because the District Co urt found that the ALJ properly weighed all the evidenc e before him, the District Court held that the ALJ's determi nation was supported by substantial evidence. Miller timel y filed this appeal.

II.

Freeman & Bass, the law firm representing Miller, apparently has a practice of obtaining one or sever al medical reports from a small group of physicians to submit on behalf of their clients for both workmen's compe nsation claims and social security claims. The problem with these reports, as noted by numerous courts, is that the w ording of the reports is often identical and not individua lly tailored to the firm's clients. See, e.g., Williams v. Sulli van, 970 F.2d 1178, 1185 n.5 (3d Cir. 1992); Coria v. Heckler, 75 0 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 diagnose s in these reports, some District Courts have held that ALJs are justified in affording them little weight. See Brad ley, 667 F. Supp. at 167 n.2; Franklin, 598 F. Supp. at 790.

This issue first drew the attention of this Court i n Coria v. Heckler, 750 F.2d 245, 248-49 (3d Cir. 1984)(Gar th, 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 af firmed a finding of no disability. In a footnote, we state d that an ALJ may not simply reject medical reports due to th eir similarity to other reports in unrelated litigation , but that in weighing the credibility of such reports, an ALJ ma y properly consider the fact that the physician made a similar finding in a separate action and may give little we ight to rote medical findings in case after case. Williams, 970 F.2d at 1185 n.5. Judge Garth wrote an extensive concurr ence

4in Williams opining that an ALJ has the discretion to reject

completely the boilerplate, stereotyped medical rep orts often submitted by Freeman & Bass. See Williams, 970 F.2d at
1188-94.

Aside from the foregoing dicta, we have yet to addr ess specifically the issue of the appropriate weight to be given these types of reports. In what appears to be the s ole published opinion from our sister courts of appeals on this issue, the Court of Appeals for the Eleventh Circui t has held that it is inappropriate for an ALJ to discoun t a medical report solely on the basis that certain phy sicians "almost invariably conclude that the person being e xamined is totally disabled" because such an observation, w ithout 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 r eject every report submitted by a certain physician or la wfirm 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 m edical report that was carbon-copied from previous litigat ion 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 re port, an ALJ may not summarily reject a report solely becaus e it contains some language repetitive of portions of pr eviously submitted reports. This rule permits an ALJ to affo rd a rote report little weight in the appropriate case, but r equires the ALJ to consider all aspects of the case before reje cting the report based solely on duplicative language.

III.

Applying these principles to this case, we find tha t the ALJ properly afforded the reports of Doctors Pollac k and Friedman minimal weight but failed to consider adeq uately the merits of Dr. Latimer's report. The ALJ offered the following explanation in discounting these three re ports:

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

5with a worker's compensation claim. These re ports

were submitted by Dr. Latimer, Dr. Pollock, and Dr. Friedman, in May 1993. These physicians freq uently submit reports in Social Security Administra tion cases. Their findings and conclusions frequently co ntain virtually identical wording, often refer to impairments not alleged by the claimant or supported by any medical evidence, and they rarely vary signi ficantly

from case to case.

* * *

I have fully reviewed the reports of Doctors Pollack, Latimer, and Friedman. They are almost ident ical in their wording and substance to numerous othe r reports submitted by the same physicians in other cases. The striking similarity of such repor ts across
numerous unrelated cases undermines their cr edibility and the objectivity of their findings and co nclusions. Therefore, they have minimal probative value from an evidentiary standpoint and I accord little w eight to

them.

Record at 23-24. Although we see no error in this a nalysis 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 r eports of Doctors Pollack and Friedman quote substantive m edical portions of these reports which are virtually ident ical to portions of these same physicians' reports on Mille r. Compare Winston, 585 F. Supp. at 364 (quoting Dr. P ollock report diagnosing "neurological residuals of exposu re 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 conta ining same language); Franklin, 598 F. Supp. at 805-16 (reproducing several Dr. Friedman reports diagnosin g patients with varying symptoms as suffering from ch ronic bronchitis and hypertensive vascular disease); with Record

6at 197 (Dr. Pollack report diagnosing Miller with

"[n]eurological residuals of exposure to noxious fu mes, dust, loud noise, and post-traumatic anxiety stress disorder . . . attributable to exposure at work."); Record a t 247-50 (Dr. Friedman report diagnosing Miller with chronic industrial bronchitis and hypertensive cardiovascul ar disease). By contrast, a review of the opinions quo ting reports by Dr. Latimer indicates that the sole repe titive portion of Dr. Latimer's report on Miller is Dr. La timer's conclusion that "[t]he patient is totally and perma nently disabled as a psychophysiological working unit." Se e, e.g., Taybron v. Harris, 667 F.2d 412, 414 (3d Cir. 1981) (quoting Dr. Latimer report concluding "[a]s an industrial u nit he should be considered totally disabled . . . ."); Cr uz-Santos v. Callahan, 1998 WL 175936, *3 (D.N.J. 1998)(quoting Dr. Latimer report concluding that patient is a "totall y and permanently disabled psychophysiological working un it . . . ."). Because a physician's ultimate conclusio n on disability is not binding on an ALJ, Dr. Latimer's repetitive conclusions as to disability do not cast the same d egree of doubt on the non-repetitive substantive portions of his report as the repetitive diagnoses cast on the over all 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 sup port 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 relie d in granting Miller's disability claim. For example, Dr . Latimer notes that Miller was a poor historian, his cogniti on was poor, and his memory, orientation, judgment, insigh t, 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. Gi ven the similarities of these reports and the fact that the Commissioner credited Dr. Haydon's report in awardi ng benefits, it cannot be said that Dr. Latimer's repo rt finds no support in the other medical evidence of record. 2

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2. In addition, at least one Social Security Admini stration reviewer seems to have credited Dr. Latimer's report. See Record a t 95 (Social Security Administration reviewer's report)(noting that evide nce of organic mental disorders included Dr. Latimer's May 1993 report di agnosing Miller with an organic personality disorder).

7We recognize that the ALJ stated in his decision th at he

fully reviewed the report of Dr. Latimer. Because D r. Latimer's report is, at least in part, substantiate d 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 co ndition, however, we must conclude that the ALJ likely lumpe d Dr. Latimer's report with the reports of Doctors Pollac k and Friedman in rejecting it without significant analys is 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 ha ve chosen not to credit Dr. Latimer's report. For exam ple, 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 bo ilerplate report, however, we cannot say that the ALJ properl y weighed this report. We accordingly shall remand th is case
for consideration of the merits of Dr. Latimer's re port in light of our discussion.

IV.

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

A True Copy:

Teste:

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

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