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A treating physician’s opinion cannot be given less weight on the grounds that his testimony in a workers’ compensation hearing put him in an “advocacy” position, a federal judge has ruled. In his 21-page opinion in Somenski v. Barnhart, U.S. District Judge Michael M. Baylson overturned a decision by an administrative law judge that denied Social Security disability pay to a man who suffers from post-traumatic stress disorder due to an accident in which two of his co-workers died. Baylson found that Administrative Law Judge William J. Reddy had misapplied the “treating physician rule” when he concluded that a doctor’s objectivity was undermined because he was an advocate for claimant Francis Somenski in his workers’ compensation litigation. “It is error to disregard medical findings of examining physicians offered as part of a workers’ compensation hearing even though it may be adversarial in nature, because this does not affect the reliability of the testimony,” Baylson wrote. The ruling is a victory for attorney David M. Linker of Freedman & Lorry in a battle that began in 1997 and was stalled for years when Social Security officials misplaced Somenski’s file. According to court papers, Linker was forced to enlist the help of Congressman Robert Brady to revive the case. But when the file was found, the ALJ rejected Somenski’s petition after a second hearing and a Social Security appeals panel upheld that ruling. Linker then filed suit in U.S. District Court to challenge the ruling, arguing that the ALJ had improperly discounted the opinions of several doctors who treated Somenski, and instead relied on the opinions of government doctors who had never even examined him. Now Baylson has ruled that the ALJ misapplied controlling law from the 3rd U.S. Circuit Court of Appeals that a treating physician’s opinion should be given “controlling weight” if it is “well-supported by diagnostic evidence and not inconsistent with other medical evidence in the record,” and that it is “an error of law to reject the treating physician’s opinion without adequate explanation.” Although an ALJ may discount a treating physician’s conclusions if they are “inconsistent with other medical evidence in the record,” Baylson found that Reddy erred when he rejected George Bell’s diagnosis because it was “amply supported by two psychiatrists and a psychologist.” Bell, who had treated Somenski for 10 years, concluded that he suffered from PTSD, severe anxiety and significant cognitive defects that precluded him from obtaining substantial gainful employment. According to court papers, Somenski is a 60-year-old high school graduate who had worked for 30 years as a longshoreman. He originally filed for Social Security disability insurance benefits in August 1997, claiming that he became disabled in 1994 due to anxiety and PTSD resulting from a work accident when he was exposed to oxygen deprivation and two of his co-workers died. The petition also alleged that Somenski suffered leg injuries in two work-related accidents that contributed to his disability. Somenski’s claim was initially denied in November 1997, and his first hearing before the ALJ was held in November 1998. One month later, Reddy denied the claim, concluding that although Somenski could no longer work as a longshoreman, he was not “disabled” because he could perform other work. The Social Security Appeals Council vacated Reddy’s first decision in September 2000 and ordered additional hearings. But Somenski’s case was stalled for years when the appeals unit misplaced his file. After Brady intervened and the file was found, Reddy held a second hearing in April 2004 — almost four years after the appeals council’s original remand order. Reddy again denied Somenski’s claim in May 2004, for similar reasons to those in his first report, and the appeals council without comment denied Somenski’s petition for review. But Baylson found that Reddy’s analysis was riddled with flaws. In his decision, Reddy had discounted opinions of four doctors, including Somenski’s primary treating psychiatrist, and supporting opinions from two other psychiatrists and a psychologist. One of the supporting psychiatrists, Robert L. Sadoff, had concluded that Somenski suffered from PTSD, anxiety and cognitive problems, including memory loss and difficulty with concentration. Reddy found that Sadoff’s objectivity was undermined by testifying at a previous hearing. But Baylson found that Reddy was wrong to reject Sadoff’s opinion since he was “not an advocate for plaintiff, but rather was hired by an adverse party.” Baylson also found that Reddy’s report “does not even discuss his reasons” for discounting the conclusions of Joseph W. Slap, who, Baylson said, was “arguably a neutral source” from the Pennsylvania Bureau of Disability Determination. Slap had concluded that Somenski’s concentration was “severely impaired” and that he had “extreme” restrictions in his ability to remember, understand and carry out detailed instructions. Special Assistant U.S. Attorney Joyce M. J. Gordon, arguing on behalf of the Social Security Administration, urged Baylson to uphold the denial of benefits, arguing that Reddy had properly relied on the opinions of state agency psychologists who are considered “highly qualified.” Baylson disagreed, saying “it contravenes 3rd Circuit precedent to hold their opinions, when they didn’t even examine plaintiff, above a treating physician who has treated plaintiff for almost 10 years.” Reddy also erred, Baylson said, when he discredited Bell’s assessment that Somenski cannot sustain substantial gainful employment because it “appear[s] to be based primarily on the claimant’s subjective complaints.” That finding was “inaccurate,” Baylson said, because the evidence showed that Bell had referred Somenski for detailed neuropsychological testing by Terri Morris in 1995 and again in 1997 to support his diagnosis. As a result, Baylson concluded that Bell’s opinion “was not based on subjective complaints alone, but was informed by Dr. Morris’ objective, detailed assessment of plaintiff’s cognitive functioning.”

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