Kinsey v. Astrue

Filing 22

MEMORANDUM OPINION re 13 MOTION for Summary Judgment, and 15 Cross-Motion for Summary Judgment. Signed by Judge Richard G. Andrews on 7/13/2012. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JENNIFER L. KINSEY,
Plaintiff,
Civil Action No. 11-301-RGA

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

Karen Y. Vicks, Esq., Dover, DE, Attorney for Plaintiff.
Charles M. Oberly, Ill, United States Attorney, Wilmington, DE; Patricia A. Stewart, Special
Assistant United States Attorney, Philadelphia, PA, Attorneys for Defendant.
MEMORANDUM OPINION

July.[i,2012

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Plaintiff Jennifer L. Kinsey appeals the decision of Defendant Michael J. Astrue, the

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Commissioner of Social Security, denying her application for disability insurance benefits
("DIB") under Title II of the Social Security Act. Pending before the Court are the parties' crossmotions for summary judgment. (D.I. 13, 14, 15, 16, 21). The court will (1) grant in part and
deny in part the plaintiffs motion for summary judgment, (2) deny the defendant's cross-motion
for summary judgment, and (3) remand this matter to the ALJ for further proceedings consistent
with this opinion.

BACKGROUND
Plaintiff first filed her application for DIB in 2007, alleging disability as of October 3, 2006. (Tr.
124-27, 155). That claim was denied initially and upon reconsideration. (Tr. 70-74,76-80). After
a requested hearing, at which Plaintiff was represented by an attorney and at which Plaintiff, her
husband, and a vocational expert testified, an administrative law judge ("ALJ") issued a decision
denying benefits. (Tr. 16-23). The Appeals Council denied Plaintiffs request for review. (Tr. 1-3 ).
Plaintiff filed an appeal to this Court.
Plaintiff was born in 1956, and was forty-nine in October 2006. (Tr. 22). She has an eighth
grade education, and worked as a school janitor for seventeen years. (Tr. 30, 31, 161 ). Plaintiff
claimed she became disabled on October 3, 2006, due to hepatitis C, high blood pressure, acid reflux,
and cirrhosis of the liver, and that she also suffers from depression and low platelets. (Tr. 161, 184).
Plaintiff claimed these conditions made her too weak and exhausted to perform her job as a
custodian, left her without any energy, and caused her to sleep most of the day. (Tr. 160, 174). On
appeal from her initial disability determination, Plaintiff also mentioned her "depression pills" and
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that she was "depressed a lot more." (Tr. 184, 186).

A. Disability Determination Process
Title II of the Social Security Act, 42 U.S.C. § 423(a)(1)(D), "provides for the payment of
insurance benefits to persons who have contributed to the program and who suffer from a
physical or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). In order to qualify
for DIB, the claimant must establish that he or she was disabled prior to the date he or she was
last insured. See 20 C.P.R.§ 404.131; Matullo v. Bowen, 926 P.2d 240,244 (3d Cir. 1990). A
"disability" is defined as the inability to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12 months.

See 42 U.S.C. §§ 423(d)(l)(A), 1382(c)(a)(3). A claimant is disabled "only ifher physical or
mental impairment or impairments are of such severity that she is not only unable to do her
previous work but cannot, considering her age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §
423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
In determining whether a person is disabled, the Commissioner is required to perform the
five-step sequential analysis set forth at 20 C.P.R.§ 404.1520. Plummer v. Apfel, 186 P.3d 422,
427-28 (3d Cir. 1999). If a finding of disability or non-disability can be made at any point in the
sequential process, the Commissioner should not review the claim further. 20 C.P.R. §
404.1520(a)(4).

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B. The ALJ's Decision

The ALJ rejected Plaintiffs claim for DIB on July 7, 2009 using the five-step sequential
analysis. (Tr. 16-23). The ALJ found Plaintiffhad not engaged in substantial gainful activity
since October 3, 2006, i.e., the disability period. Second, the ALJ concluded that Plaintiffs
hepatitis C was a "severe impairment," while Plaintiffs degenerative joint disease of the left
elbow, obesity, hypertension, and gastroesophageal reflux disease were nonsevere impairments.
In the third step, the ALJ concluded that Plaintiff did not have a match to the list of impairments,
specifically noting she did not have the listed impairments of esophageal varices, hepatic
encephalopathy, or hepatic cell necrosis. In the fourth step, the ALJ concluded that Plaintiff was
not able to perform past relevant work. Finally, in the fifth step, the ALJ concluded that Plaintiff
could perform light work, so long as that work was limited to jobs that can be performed with
one arm with minimal assistance from the other arm; to simple, routine work; and to jobs that
require low stress, low concentration, and low memory. The ALJ concluded that such jobs exist
in significant numbers in the national economy.
DISCUSSION

A. The Arguments on Appeal
The ALJ determined that while Plaintiff was not capable of returning to her old job, she
was capable of adjusting to less physically and mentally demanding work and therefore was not
disabled. On summary judgment, Plaintiff argues this determination was wrong because: 1) the
ALJ wrongly found that the residual functional capacity ("RFC") analysis by Plaintiffs treating
hepatologist, Dr. Thuluvath, was entitled to "little weight" in light of a 2007 note from Plaintiffs
orthopedist excusing her from work, and instead wrongly relied on a non-examining state agency

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RFC; 2) the ALJ wrongly interpreted Dr. Thuluvath's RFC assessment as finding Plaintiff to be

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the opinion of a qualified mental health professional and through the statutory five-step analysis;

capable of light work; 3) the ALJ failed to properly consider Plaintiffs asserted depression via

and 4) the ALJ failed to indicate consideration of Plaintiffs husband's testimony at the hearing.
(D.I. 14).
Defendant argues that 1) the ALJ's assessment of Plaintiffs residual functional capacity
properly weighed the analyses by Dr. Thuluvath and the state agency, particularly in light of the
other record evidence; 2) the ALJ's interpretation of Dr. Thuluvath's RFC assessment was proper
or, alternatively, only harmless error; 3) Plaintiff failed to prove depression as an impairment;
and 4) the ALJ did evaluate Plaintiffs husband's testimony.

B. Standard of Review
The Court must uphold the Commissioner's factual decisions if they are supported by
"substantial evidence." See 42 U.S.C. §§ 405(g), 1383(c)(3); Monsour Med. Ctr. v. Heckler, 806
F.2d 1185, 1190 (3d Cir. 1986). "Substantial evidence" means less than a preponderance of the
evidence but more than a mere scintilla of evidence. See Rutherford v. Barnhart, 399 F.3d 546,
552 (3d Cir. 2005). As the United States Supreme Court has noted, substantial evidence "does
not mean a large or significant amount of evidence, but rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487

u.s. 552, 565 (1988).
In determining whether substantial evidence supports the Commissioner's findings, the
Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh
the evidence of record. See Monsour, 806 F.2d at 1190. The Court's review is limited to the

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evidence that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95
(3d Cir. 2001). "Credibility determinations are the province ofthe ALJ and only should be
disturbed on review if not supported by substantial evidence." Pysher v. Apfel, 2001 WL
793305, at *3 (E.D.Pa. July 11, 2001).
The Third Circuit has explained that a "single piece of evidence will not satisfy the
substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is overwhelmed by other
evidence-particularly certain types of evidence (e.g., evidence offered by treating physicians )-or
if it really constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F .2d 110, 114
(3d Cir. 1983). Even ifthe reviewing court would have decided the case differently, it must defer
to the ALJ and affirm the Commissioner's decision if it is supported by substantial evidence. See

Monsour, 806 F.2d at 1190-91.

C. Analysis
1. The ALl erred in rejecting the opinion evidence of Plaintiff's treating physician.
In evaluating opinion evidence from some of Plaintiffs treating physicians (Dr.
Thuluvath and Dr. Manifold) and the state agency medical assessor, the ALJ noted the following:
As for the opinion evidence, in a statement dated March 3, 2009, Dr. Thuluvath
gave the claimant a residual functional capacity for light work, but stated she
would be absent from work more than four times a month. [(Tr. 369-372).] The
undersigned gives little weight to this statement because it was offered during the
time period of the claimant's Hepatitis C treatment, but does not consider the
prior time period from October 2006 to January 2009. The objective medical
evidence of the prior time period does not support the degree of absences. Dr.
Stephen Manifold, the claimant's treating orthopedist, only restricted the claimant
from lifting fifty pounds or more. [(Tr. 264).] There is no reason the claimant
could not have done a lighter exertional job based on this opinion.

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The State Agency medical consultants stated the claimant was capable of light
work. [(Tr. 312-17).] The undersigned finds that the objective medical evidence
fully supports this residual functional capacity.
(Tr. 21).
"A cardinal principle guiding disability eligibility determinations is that the ALJ accord
treating physicians' reports great weight." Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
Moreover, a treating source's opinion on the nature and severity of a claimant's impairment will
be given controlling weight where it is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence on
record. Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001). The ALJ must consider medical
findings supporting the treating physician's opinion that the claimant is disabled. Morales, 225
F.3d at 317. If the ALJ rejects the treating physician's assessment, he may not make "speculative
inferences from medical reports" and may reject "a treating physician's opinion outright only on
the basis of contradictory medical evidence." Plummer, 186 F.3d at 429. If an ALJ chooses not
to give a treating physician's opinion controlling weight, he must look at factors that include (1)
examining relationship; (2)(i) length and frequency of treatment; (2)(ii) nature and extent of the
treatment relationship; (3) degree to which the evidence supports the opinion; (4) consistency of
the record as a whole; (5) specialization ofthe physician; and (6) other factors. See 20 C.F.R. §
404.1527(d).
It appears the ALJ rejected Dr. Thuluvath's opinion because the ALJ thought it conflicted

with Plaintiffs case record for the disability period predating Dr. Thuluvath's opinion.
Specifically, the ALJ cited another treating physician's record (Dr. Manifold's) that the ALJ
interpreted as indicating a more robust residual functional capacity than that found by Dr.

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Thuluvath. Dr. Manifold, Plaintiffs treating orthopedist, issued a medical leave of absence in
January 2007 that directed, "No lifting 50 lbs for 3 months." (Tr. 264). The ALJ appears to
interpret this note to conflict with Dr. Thuluvath's 2009 opinion that Plaintiffs condition
required more than four absences a month, and to reject Dr. Thuluvath's opinion in favor of the
state agency consultant's opinion on that basis.

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The ALJ applied most of the regulatory factors in rejecting Dr. Thuluvath's opinion. The
ALJ noted that Dr. Thuluvath, "the claimant's treating doctor," began treating Plaintiff in January
2007, and continued treating her over multiple encounters through July 2007 and August 2008;
that he diagnosed her with hepatitis C (the only severe impairment identified) and end stage liver
disease; and that he worked through Plaintiffs obesity, thrombocytopenia, fatigue, and sleepiness
in treating her hepatitis. (Tr. 18-21). The ALJ did not note Dr. Thuluvath's speciality of
hepatological disorders (Tr. 36-37), the degree to which the evidence might support Dr.
Thuluvath's opinion, or the consistency of the record as a whole.
The ALJ erred in rejecting Dr. Thuluvath's opinion based on speculative inferences from
Dr. Manifold's medical leave form. Dr. Manifold, an orthopedist, restricted Plaintiff from lifting
fifty pounds for three months because of her elbow. (Tr. 21, 264-65) ("She is unable to return to

work yet since she states she has to lift 50 pounds in order to do so."). There is no basis to infer
that Dr. Manifold took Plaintiffs hepatological problems into account in restricting her activity
based on her elbow. Dr. Manifold's 2007 medical leave form does not shed any light on the
nature and severity of Plaintiffs hepatitis C impairment from 2006-2009, much less contradict
Dr. Thuluvath's 2009 opinion on that impairment. Defendant's Brief does not argue in support
of the ALJ' s inference.

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The ALJ further erred by rejecting Dr. Thuluvath's opinion on the basis that it "was
offered during the time period of the claimant's Hepatitis C treatment, but does not consider the
prior time period from October 2006 to January 2009." (Tr. 21). There is no basis to conclude
that Dr. Thuluvath's opinion did not consider Plaintiffs hepatitis C impairment over the entirety
of Dr. Thuluvath's treatment, and in fact, the opinion indicates that he has been seeing Plaintiff
"monthly" and that the impairments "lasted or can ... be expected to last at least twelve months."
(Tr. 369). Defendant's Brief, again, does not offer any argument in support of the ALJ's analysis
on this point.
For the above reasons, the Court finds that the ALJ failed to accord proper weight to the
medical opinion and assessment of Plaintiffs treating physician. This error taints the ALJ's
reliance on the non-examining state agency source. The Court therefore concludes that the ALJ's
decision is not supported by substantial evidence in the record. This matter is remanded for the
ALJ to reconsider the opinion evidence in this case in its entirety. The Court need not reach
Plaintiffs other arguments for remand that depend on the ALJ's handling of Dr. Thuluvath's
opinion evidence.

2. The AUfailed to properly evaluate Plaintiff's asserted depression.
Plaintiff alleges the ALJ failed to properly evaluate her depression by failing to apply the
statutory evaluation procedure in 20 CFR § 404.1520a and by failing to have a qualified
psychologist or psychiatrist review the record. (D.I. 14 at 18-20). Defendant responds that
Plaintiff did not present depression as an impairment that causes death or lasts (or is expected to
last) twelve consecutive months, or present that issue at the administrative hearing, and that the
record indicates Plaintiff is not disabled by depression. (D.I. 16 at 17-18).

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The record contains evidence of depression and treatment for depression 1 in Dr.
Thuluvath's physical RFC questionnaire (Tr. 369) and records (Tr. 320,323, 506,508, 510) and
in Plaintiffs primary care physician's records. (Tr. 340, 527-29, 533; see also Tr. 342, 346,
402). Plaintiff mentioned her "depression pills" and that she was "depressed a lot more" in her
appeal from her original disability determination. (Tr. 184, 186). The ALJ' s opinion addresses
this evidence of depression as follows: "In January 2008, the claimant reported her family doctor
started her on an anti-depressant and she noted some improvement in her symptoms." (Tr. 20).
Plaintiff cites numerous statutes and regulations in arguing for remand because no
psychologist or psychiatrist reviewed Plaintiffs records for depression, while Defendant argues
that Plaintiff had the burden to prove depression and that without such proof the ALJ had no duty
to consider Plaintiffs depression. The law is somewhere between these positions.
[A]n ALJ is not required to employ the assistance of a qualified psychiatrist or
psychologist in making an initial determination of mental impairment. Instead, the
Commissioner's regulations provide an ALJ with greater flexibility than other
hearing officers. At the initial and reconsideration levels, a [Psychiatric Review
Technique] form-outlining the steps ofthe § 404.1520a procedure-must be
completed and signed by a medical consultant. 20 C.F .R. § 404.1520a(d)( 1).
However, the ALJ has several options available: she can complete and sign the
document without the assistance of a medical adviser; she can call a medical
adviser for assistance in completing the document; or, if new evidence is received
or the issue of mental impairments arises for the first time, she can remand the
case for completion of the document and a new determination. 20 C.P.R. §
404.1520a(d)(l)(i-iii). In summary, the regulations allow the ALJ to remand for
further review, to proceed with a determination without the assistance of a
medical adviser, or to call a medical adviser for assistance with the case. In all
cases, however, the ALJ has a duty to consider all evidence of impairments in the
record.

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There is some indication that Plaintiffs depression medication was prescribed to treat
the fatigue from her other medical issues. (See, e.g., Tr. at 320, 506).
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Plummer v. Apfel, 186 F.3d 422,433 (3d Cir. 1999); see also Dougherty v. Astrue, 715

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F.Supp.2d 572, 585-86 (D. Del. 2010). While the ALJ here was not required to have a

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psychologist or psychiatrist review the record, the indications of depression in the record required

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the ALJ to make a statutory determination of impairment, which the ALJ did not do. The matter
is remanded for analysis of Plaintiffs asserted depression.
3. The record shows the ALJ sufficiently considered Mr. Kinsey's testimony.

The ALJ noted that "Daniel Kinsey, the claimant's husband, appeared and testified on
behalf of the claimant" and:

Mr. Kinsey testified that the claimant has a back-up of toxins that affects her
memory and makes her tired. He stated he has to call her from work to wake her
up because she is overly tired because of what she is going through. The witness
testified that her elbow hurts her. He stated that the medications help her, but they
make her tired, sick to her stomach, and give her headaches.
(Tr. 16, 21). The ALJ went on to discuss Plaintiffs credibility, but not Mr. Kinsey's. (Tr. 21).
Plaintiff asserts that the absence of any explicit credibility analysis of Mr. Kinsey warrants
remand under Burnett v. SSA, 220 F.3d 112, 122 (3d Cir. 2000). Like the claimant's husband
and neighbor in Burnett, Mr. Kinsey was there to bolster Plaintiffs credibility; but unlike the
Burnett ALJ, the ALJ here indicated he had considered Mr. Kinsey's testimony. See id. The

Court finds that the ALJ's credibility assessment of Plaintiff, in the paragraph immediately
following the ALJ's description of Mr. Kinsey's testimony, reflects the ALJ's overall
determination of Plaintiffs credibility as informed by Mr. Kinsey's testimony. Remand is not
warranted on this basis.
An order consistent with this opinion will be issued.

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