JEFFREY L. SCHMEHL, District Judge.
Pending before the Court is the report and recommendation of the Honorable Linda K. Caracappa (Docket No. 14). Plaintiff filed objections to the report and recommendation. As such, this matter is ripe for review. After a thorough review of the report and recommendation and the administrative record, as well as all documents filed in connection with the Complaint, I will decline to adopt the Report and Recommendation. This matter is remanded to the Commissioner of Social Security for further proceedings in order to properly consider Plaintiff's credibility and its effect on her alleged impairments.
When timely objections are filed to a report and recommendation prepared by a magistrate judge, the district court must review de novo the portions of the report and recommendation to which objection is made. 28 U.S.C. § 636(b)(1).
At issue is whether the ALJ properly analyzed all evidence necessary to reach a determination as to Plaintiff's credibility. The ALJ found that the "objective evidence of record does not support the claimant's extreme physical complaints, and limitations, and reveals that the claimant is not fully credible." (Administrative Record 25) (hereinafter "A.R."). In analyzing the ALJ's credibility determination, the Magistrate Judge found that the ALJ's assessment of the credibility of Plaintiff's complaints does not warrant remand, despite finding multiple errors with regard to that credibility assessment. I find that the errors in the ALJ's credibility determination require remand, as set forth below.
First, it is well-established that when a claimant has a lengthy work history of continuous work, his or her testimony is entitled to "substantial credibility."
In the instant matter, the Magistrate Judge noted that the ALJ failed to discuss Plaintiff's work history and found this "failure to expressly note plaintiff's seventeen year work history to not constitute reversible error."
Plaintiff also disagrees with the Magistrate Judge's determination that the ALJ's failure to address or inquire into Plaintiff's lack of insurance in making the credibility determination was harmless error. Social Security regulations stated that an "individual's statements may be less credible . . . if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure. However, the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment." SSR 96-7p. The regulations go on to list several examples of this, such as when the "individual may be unable to afford treatment and may not have access to free or low-cost medical services."
In the instant matter, the ALJ found that Plaintiff "ha[d] been non-compliant with medication on more than one occasion, which reflect[ed] poorly on her credibility." (A.R. 27.) The ALJ cited treatment records to support Plaintiff's non-compliance with her medication, but then failed to discuss the portions of those same treatment records that indicated Plaintiff had not sought treatment for a year due to lack of insurance. (A.R. 922, 890, 893.) The Magistrate Judge found that the ALJ erred by failing to address or inquire into plaintiff's lack of insurance, but then found that this error was harmless. (R&R p. 24.) I find that the ALJ's failure to consider whether Plaintiff could afford medical treatment and medication due to the state of her insurance coverage was an error that requires remand.
Plaintiff also disputes the Magistrate Judge's determination that the ALJ's failure to consider the observation of a Social Security Field Office employee was harmless error. A Social Security Field Office employee indicated that Plaintiff "was uncomfortable sitting for interview, appeared in be in pain, grimacing." (A.R. 190.) Social Security Rulings require that in evaluating the credibility of an individual's statements, an "adjudicator must also consider any observations about the individual recorded by Social Security Administration (SSA) employees during interviews, whether in person or by telephone." SSR 96-7p. The Magistrate Judge found the ALJ's failure to "expressly reference the field officer's notation" was harmless error because the ALJ had considered a medical opinion statement which included a reference to the field officer's observations. (R&R, p. 25.) I find that the failure to consider the field officer's notes as to Plaintiff's condition is reversible error, as the Social Security Ruling states that the ALJ "must" consider any observations of SSA employees during interviews, which the ALJ in this matter did not do, as there was no mention of said observations in his opinion.
Lastly, Plaintiff also disagrees with the Magistrate Judge's finding that it was harmless error for the ALJ to fail to consider the statement submitted by Charles Brown, Plaintiff's fiancée. Mr. Brown submitted a written statement regarding Plaintiff's use of a cane and medications. The Magistrate Judge found that this statement was cumulative evidence which merely reasserted Plaintiff's own statements, and therefore, the failure to consider it was harmless error. (R&R pp. 25-26.) I disagree with the Magistrate Judge's determination, as an ALJ cannot ignore third party witness statements when judging the credibility of a claimant.
The ALJ's errors in assessing Plaintiff's credibility are not harmless, as recommended by the Magistrate Judge. The ALJ's credibility assessment was flawed by his failure to discuss Plaintiff's long work history, her lack of insurance, the third party statement of her fiancée and the observations of the Social Security Field Office employee. Therefore, I will not adopt the recommendation of the Magistrate Judge and I will remand this matter to the ALJ to perform a proper credibility determination, taking all of this information into consideration.
Further, because I find the ALJ's credibility finding was flawed, and the RFC determination, by necessity, was based in part upon this flawed credibility determination, a new RFC determination must also be completed on remand. Therefore, I do not reach Plaintiff's other challenges to the Report and Recommendation.
I will decline to adopt the Magistrate Judge's Report and Recommendation. I will remand this matter to the Commissioner for further proceedings consistent with this opinion.