Belfon v. Berryhill
Filing
14
MEMORANDUM OPINION. Signed by Judge Malachy E. Mannion on 9/28/18. (Sempa, Barbe)
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
FRANSICA AGATHA BELFON,
:
Plaintiff
:
v.
CIVIL ACTION NO. 1:17-490
:
NANCY BERRYHILL1 ,
Acting Commissioner of
Social Security,
Defendant
(JUDGE MANNION)
:
:
:
MEMORANDUM
The above-captioned action is one seeking review of a decision of the
Acting Commissioner of Social Security (“Commissioner”) denying the
plaintiff’s application for Social Security Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”), 42 U.S.C. §§401-433. The
court has jurisdiction pursuant to 42 U.S.C. §405(g). Currently before the
court are the parties’ cross-motions for summary judgment. (Doc. 7, Doc. 9).
For the reasons set forth below, the plaintiff’s motion will be granted, the
defendant’s motion will be denied, and the instant action will be remanded to
the Commissioner for further proceedings in accordance with this decision.
1
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted for Carolyn W. Colvin, Acting Commissioner of Social Security as
the defendant in this suit.
I.
BACKGROUND2
Disability insurance benefits are paid to an individual if that individual is
disabled and “insured,” that is, the individual has worked long enough and
paid social security taxes. The last date that a claimant meets the
requirements of being insured is commonly referred to as the “date last
insured.” It is undisputed that plaintiff met the insured status requirements of
the Social Security Act through September 30, 2014. (Tr. 17).3 In order to
establish entitlement to DIB, the plaintiff was required to establish that she
suffered from a disability on or before that date. 42 U.S.C. §423(a)(1)(A),
(c)(1)(B); 20 C.F.R. §404.131(a); see Matullo v. Bowen, 926 F.2d 240, 244
(3d Cir. 1990).
The plaintiff was born on November 24, 1948, (Tr. 33), and was an
individual “closely approaching retirement age”4/5 when the Administrative Law
Judge (“ALJ”) rendered his decision in this case. The plaintiff attended college
2
Since the ALJ and the parties have set forth the medical history of
plaintiff in their respective filings, the court will not fully repeat it herein.
Rather, the court discusses the plaintiff’s medical history only to the extent it
is relevant to the issues raised in this appeal.
3
References to “Tr. __” are to pages of the administrative record filed by
the defendant. (Doc. 4).
4
20 C.F.R. §404.1563(e).
5
There are special rules related to the transferability of work skills for
persons who are “closely approaching retirement age”. 20 C.F.R.
§404.1568(d)(4).
2
and has past relevant work as a central processing technician and an
operating room technician. (Tr. 160, 174). The plaintiff stopped working on
September 12, 2012, when she alleges she became disabled and unable to
work due to back pain, stroke, memory loss, dizziness and balance issues,
high blood pressure and heart murmur. (Tr. 159-60).
The plaintiff filed a claim for DIB on November 27, 2012, alleging
disability commencing on September 12, 2012, due to the foregoing
conditions. She was sixty-four (64) years old at the time. (Tr. 19-20, 35, 13536, 159). The agency denied the plaintiff’s application initially on April 19,
2013, and upon reconsideration on October 25, 2013. (Tr. 46-75, 79-92). The
plaintiff then requested a hearing before an ALJ, which was held on August
25, 2015. (Tr. 29-45).
The ALJ issued a decision on September 16, 2015, in which he found
that the plaintiff was not disabled within the meaning of the Act. (Tr. 17-24).
The plaintiff filed a request for review, and on March 3, 2017, the Appeals
Council denied the plaintiff’s request, making the ALJ’s decision the final
decision of the Commissioner. (Tr. 1-5). Since the plaintiff exhausted her
administrative remedies, she initiated the present action on May 1, 2017,
appealing the final decision of the Commissioner. (Doc. 1).
The plaintiff raises three grounds in support of her appeal of the ALJ’s
determination: (1) the ALJ committed errors of law and fact when he found
she has no severe mental impairments and included no mental limitations in
3
her RFC, when the record evidence demonstrates the opposite and the ALJ
purportedly relied on such evidence; (2) the ALJ violated Third Circuit law and
Agency regulation when he failed to account for mental limitations in the
residual functional capacity, (“RFC”), assessment that he had earlier
assessed the plaintiff within his decision and which are supported by the
evidence of record to which he gave weight; and (3) the ALJ erred when he
gave great weight to the state agency physician opinions, but arbitrarily
included only some of their opined hazard limitations in the RFC, limitations
that would preclude the performance of past work according to the vocational
expert (“VE”). As relief, the plaintiff seeks to have this court remand her case
to the Commissioner for further proceedings.
II.
STANDARD OF REVIEW
When reviewing the denial of disability benefits, the court must
determine whether the denial is supported by substantial evidence. Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of
Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence “does not
mean a large or considerable 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 (1988); Hartranft v. Apfel,
181 F.3d 358, 360. (3d Cir. 1999), Johnson, 529 F.3d at 200. It is less than
a preponderance of the evidence but more than a mere scintilla. Richardson
4
v. Perales, 402 U.S. 389, 401 (1971).
To receive disability benefits, the plaintiff must demonstrate an “inability
to engage in 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.” 42 U.S.C. §432(d)(1)(A). Furthermore,
[a]n individual shall be determined to be under a disability only if
[her] physical or mental impairment or impairments are of such
severity that [s]he 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, regardless of whether such work exists
in the immediate area in which [s]he lives, or whether a specific
job vacancy exists for [her], or whether [s]he would be hired if
[s]he applied for work. For purposes of the preceding sentence
(with respect to any individual), ‘work which exists in the national
economy’ means work which exists in significant numbers either
in the region where such individual lives or in several regions of
the country.
42 U.S.C. §423(d)(2)(A).
In the present case, there are cross-motions for summary judgment. “In
Social Security cases, the substantial evidence standard applies to motions
for summary judgment brought pursuant to Federal Rule of Civil Procedure
56(c).” Antoniolo v. Colvin, 208 F.Supp.3d 587, 595 (D.Del. 2016) (citing
Woody v. Sec’y of the Dep't of Health & Human Servs., 859 F.2d 1156, 1159
(3d Cir.1988).
5
III.
DISABILITY EVALUATION PROCESS
A five-step evaluation process is used to determine if a person is eligible
for disability benefits. See 20 C.F.R. §404.1520. See also Plummer , 186 F.3d
at 428. If the Commissioner finds that a plaintiff is disabled or not disabled at
any point in the sequence, review does not proceed any further. See 20
C.F.R. §404.1520. The Commissioner must sequentially determine: (1)
whether the claimant is engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the claimant’s impairment
meets or equals a listed impairment; (4) whether the claimant’s impairment
prevents the claimant from doing past relevant work; and (5) whether the
claimant’s impairment prevents the claimant from doing any other work. See
20 C.F.R. §404.1520.
Here, the ALJ found that the plaintiff has not engaged in substantial
gainful activity since September 12, 2012, the alleged onset date, through her
date last insured of September 30, 2014. (Tr. 19). Next, the ALJ determined
that plaintiff suffered from severe impairments, including history of transient
ischemic attack, hypertension and knee osteoarthritis, status-post knee
surgery. (Tr. 19). The ALJ then found that plaintiff does not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments. (Tr. 21). At step four of the process,
the ALJ found that plaintiff had the RFC to perform light work except that she
must avoid heights and uneven ground. (Tr. 22).
6
The plaintiff testified at the hearing and, while the ALJ found that the
plaintiff’s medically determinable impairments could reasonably be expected
to cause her alleged symptoms, the ALJ also found that the plaintiff’s
statements regarding the intensity, persistence and limiting effects of her
symptoms were not entirely credible. (Tr. 22).
Also testifying at the hearing was a VE, who testified that the plaintiff’s
past work as a central processing technician was light, semi-skilled, SVP of
3, and her work as an operating room technician was light, skilled, SVP of 6.
Upon questioning by the ALJ, the VE testified that the plaintiff’s past relevant
work would not include hazards such as heights and uneven ground, but
would include hazards such as working around dangerous implements. The
VE testified that symptoms, including headaches and dizziness, would have
adverse vocational impact insofar as the hazards were concerned and,
moreover, severe enough headaches could interfere with productivity because
of lack of concentration or focus. According to the VE, loss of productivity
greater than 15% to 20% would result in a preclusion of work. Upon
questioning by the plaintiff’s attorney, the VE testified that an individual who
was unable to bend, stoop or balance would not be able to perform the
plaintiff’s past relevant work and there would be no transferability of skills.
Further, the VE testified that an individual could not perform the plaintiff’s past
relevant work, if the individual could perform light work activity but, due to
pain, memory and focus limitations, was limited to simple, routine, unskilled
7
work. (Tr. 14-16).
The ALJ then determined that based on plaintiff’s age, education, work
experience and RFC, the plaintiff was capable of performing her past relevant
work as a central processing technician and was not under a disability, as
defined in the Act, at any time from the date of her alleged onset through the
date last insured. (Tr. 24).
IV.
DISCUSSION
The plaintiff first argues that the ALJ committed errors of law and fact
in his opinion when he found that she had no severe mental impairments and
included no mental limitations in her RFC, when the record evidence
demonstrates the opposite and the ALJ purported to rely on such evidence.
Specifically, the plaintiff argues that the ALJ gave “great weight” to the
treating opinion of Dr. Borson, who the ALJ credited as saying that “the
claimant is most likely not disabled due to her conditions.” (Tr. 21) (emphasis
added). The ALJ indicated that such a finding would be consistent with the
other medical evidence of record, which he indicated reflects that the plaintiff
does not have the need for intensive specialized mental health treatment and
is not cognitively limited. However, upon review of the record, the plaintiff
correctly points out that what Dr. Borson actually opined was “[p]atient is
most likely disabled because of her neurological limitations - see reports of
her Neurologist.” (Tr. 322) (emphasis added). Thus, the ALJ obviously erred
8
in his reading of Dr. Borson’s report. Whether or not the ALJ’s opinion would
be altered by a correct reading of Dr. Borson’s report is not for the court to
surmise. Because it is clear that the ALJ gave “great weight” to an improperly
read report of the plaintiff’s treating physician, the plaintiff’s motion for
summary judgment will be granted on this basis and the matter will be
remanded, so that the ALJ can give proper consideration to the report and
determine whether the information impacts his decision.6
6
The defendant argues that the court should not consider this argument
because the ALJ issued a favorable decision at Step Two of the process and,
therefore, it cannot be a basis for remand. The court recognizes that the Step
Two determination is a threshold analysis requiring the showing of only one
severe impairment, which the ALJ found in this case. However, the plaintiff
makes her arguments, not only in relation to Step Two, but also in relation to
later steps, including with respect to her RFC assessment. Because the ALJ
considered erroneous evidence, which may not only have impacted his
decision at Step Two, but later steps as well, the court considers the plaintiff’s
arguments. See Palin v. Colvin, 2013 WL 5924972, at *3 (E.D.Pa. Nov. 5,
2013) (citing Jennings v. Astrue, 2009 WL 7387721, at *16 (E.D.Pa. Nov. 30,
2009)).
Moreover, in ruling upon the parties’ motions for summary judgment in
this case, the court considers only whether the ALJ’s determination is
supported by substantial evidence, and indications that the ALJ relied upon
erroneous information in making his determination cannot support a finding
that the determination was based upon substantial evidence. See Lopez v.
Colvin, 2014 WL 5410299, at *15 (D.R.I. Oct. 22, 2014) (when the ALJ makes
a finding based on a factually incorrect reason, the ALJ’s finding is not
supported by substantial evidence) (citing King v. Califano, 615 F.2d 1018,
1020 (4th Cir. 1980); Persico v. Barnhart, 420 F.Supp.2d 62, 75
(E.D.N.Y.2006)). In this regard, when incorrect evidence is relied upon, even
if other appropriate reasons are given, it is impossible for the court to
determine how much the error corrupted the ALJ’s determination. Lopez,
(continued...)
9
In addition, the plaintiff argues that the ALJ erred in finding that her
Global Assessment of Functioning (“GAF”) scores in the 50-60 range, which
were assessed by Dr. Borson and examining psychologist Dr. Simon, were
consistent with only mild social and occupational limitations. In fact, the
plaintiff argues that such scores indicate moderate mental functional
problems.
The GAF score allows a clinician to indicate his judgment of a person’s
overall psychological, social and occupational functioning, in order to assess
the person’s mental health illness. Button v. Colvin, 2013 WL 6805069, at *5
(M.D. Pa. Dec. 20, 2013) (citing Diagnostic and Statistical Manual of Mental
Disorders 3-32 (4th ed.1994) (“DSM”). The GAF rating is the single value that
best reflects the individual’s overall functioning at the time of examination. Id.
The rating, however, has two components: (1) symptom severity and (2)
social and occupational functioning. Id. The GAF is within a particular range
if either the symptom severity or the social and occupational level of
functioning falls within that range. Id. When the individual’s symptom severity
and functioning level are discordant, the GAF rating reflects the worse of the
two. Id. According to the DSM, a GAF score of 51 to 60 represents “moderate
symptoms or any moderate difficulty in social, occupational, or school
functioning.” Id.
6
(...continued)
supra.
10
In the exhibits relied upon by the ALJ, Dr. Simon assessed the plaintiff’s
GAF at 58 on April 9, 2013. (Tr. 301). On October 9, 2013, Dr. Borson
assessed the plaintiff’s GAF in the 50-60 range. Both scores reflect moderate
symptoms or any moderate difficulty in social, occupational, or school
functioning, not mild limitations as indicated by the ALJ. The ALJ’s conclusion
that these GAF scores were consistent with mild limitations was in error.
Again, whether proper consideration of the GAF scores which reflect the
plaintiff’s limitations as moderate, as opposed to mild, would ultimately
change the ALJ’s disability determination is not a matter for the court to
speculate about, as the court considers only whether the ALJ’s determination
is supported by substantial evidence. As previously noted, indications that the
ALJ relied upon erroneous information in making his determination do not
support a finding that the determination was based upon substantial
evidence. See n.6.
The plaintiff also argues that the ALJ believed, based upon the
testimony of the VE, that her past work as a central processing technician
was SVP 3 when, in fact, it was SVP 47 and is classified as reasoning level
3. Although neither the VE, nor the ALJ, identified this past work by its DOT
7
A SVP 3 calls for semi-skilled work and allows for preparation time over
one month up to and including three months, while a SVP 4 calls for semiskilled work and allows for preparation time of over three months up to and
including six months. Semi-skilled work is work which needs some skills but
does not require doing the more complex work duties. 20 C.F.R.
§404.1568(b); SSR 00-4p.
11
number, the plaintiff argues that the DOT job description for her job, DOT
#381.87-010, Central-Supply Worker (Medical Service) - alternate titles
Central-Service Technician, provides that it is classified as SVP 4 with a
reasoning level 3. The plaintiff argues that, even if she had only mild mental
impairment, her ability to perform SVP 4, semi-skilled work would be
impacted.
The plaintiff is correct that the Central-Supply Technician position is
listed in the DOT as an SVP 4, reasoning level 3, not SVP 4. Further, upon
review of the record, the entire VE testimony, including questioning by the ALJ
and the plaintiff’s counsel, consumes just slightly over two pages of the
hearing transcript. There is no testimony regarding what DOT number the VE
relied upon or how the VE came to the conclusion that the plaintiff’s past work
as a Central-Supply Technician was SVP 3. Moreover, there is no testimony
in the record as to any conflict with the DOT. In this regard, Social Security
Ruling (“SSR”) 00-4p was adopted to clarify the Social Security
Administration’s standards for identifying and resolving conflicts between
“occupational evidence provided by a [vocational expert] . . . and information
in the DOT.” SSR 00-4p. The ruling states that:
“[o]ccupational evidence provided by a VE [vocational expert] or
VS [vocational specialist] generally should be consistent with the
occupational information supplied by the DOT. When there is an
apparent unresolved conflict between VE or VS evidence and the
DOT, the adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE or VS evidence to support a
determination or decision about whether the claimant is disabled.
12
At the hearing level, the adjudicator will inquire, on the record, as
to whether or not there is such consistency. Neither the DOT nor
the VE or VS evidence automatically ‘trumps’ when there is a
conflict. The adjudicator must resolve the conflict by determining
if the explanation given by the VE or VS is reasonable and
provides a basis for relying on the VE or VS testimony rather than
on the DOT information.
SSR 00-04p.
The Third Circuit has interpreted this ruling to mean that an ALJ has a
duty to inquire about any discrepancy between a vocational expert’s testimony
and information contained in the DOT. Burns v. Barnhart, 312 F.3d 113, 127
(3d Cir. 2002). An ALJ’s failure to comply with the requirements of SSR 0004p may result in a remand of a claim by the district court. Rutherford v.
Barnhart, 399 F.3d 546, 557 (3d Cir. 2005). Nevertheless, a remand is only
appropriate where the vocational expert’s testimony is inconsistent with the
DOT and there is no other substantial evidence in the record to support the
ALJ’s decision. Id.; see also McHerrin v. Astrue, 2010 WL 3516433, *5
(E.D.Pa. Aug.31, 2010).
Here, there appears to be a conflict between the VE’s testimony and the
DOT. However, there is no inquiry by the ALJ, nor testimony by the VE,
regarding such conflict. Given this, and in light of the court’s finding that a
determination of substantial evidence cannot be made on the record currently
before the court, the plaintiff’s motion for summary judgment will be granted
on this basis. Upon remand, the ALJ should clarify the basis of the VE’s
testimony, address any conflict between the VE’s testimony with the DOT,
13
and determine whether the plaintiff can still perform her past work activity at
SVP 4.
The plaintiff next argues that the ALJ failed to include in his RFC finding
and dispositive hypothetical question mental functional limitations which he
himself had found to be present. Despite finding that the plaintiff has mild
limitations in concentration, persistence, pace, social functioning and activities
of daily living8, the ALJ included no mental functional limitations in his RFC
finding or his hypothetical question to the VE.
Residual functional capacity is the individual’s maximum remaining
ability to do sustained work activities in an ordinary work setting on a “regular
and continuing basis.” See Social Security Ruling 96–8p, 61 Fed.Reg. 34475.
The residual functional capacity assessment must include a discussion of the
individual’s abilities. Id.; 20 C.F.R. §404.1545; Hartranft, 181 F.3d at 359 n.1
(“‘Residual functional capacity’ is defined as that which an individual is still
able to do despite the limitations caused by his or her impairment(s).”). In
determining a plaintiff’s RFC, the ALJ must consider all relevant evidence,
including the medical evidence of record and the plaintiff’s subjective
complaints. 20 C.F.R. §404.1545(a). The responsibility for determining a
plaintiff’s residual functional capacity at the hearing level is reserved for the
ALJ, 20 C.F.R. §404.1546, and the final responsibility for determining the RFC
8
Even mild impairment can preclude skilled and semi-skilled work
activity. See Hutton v. Astrue, 491 Fed.App’x 50 (9th Cir. 2012).
14
is reserved for the Commissioner, who will not give any special significance
to the source of another opinion on this issue, 20 C.F.R. §404.1527(e)(2), (3).
In Antoniolo v. Colvin, 208 F.Supp.3d 587, 597 (D.De. 2016), the court
explained:
A hypothetical question must include all of the claimant’s “credibly
established limitations.” Rutherford v. Barnhart, 399 F.3d 546, 554
(3d Cir. 2005). Accordingly, a limitation that is supported by
medical evidence, and “otherwise uncontroverted in the record,”
must be included in the hypothetical. Zirnsak v. Colvin, 777 F.3d
607, 614 (3d Cir.2014). “However, where a limitation is supported
by medical evidence, but is opposed by other evidence in the
record, the ALJ has discretion to choose whether to include that
limitation in the hypothetical.” Id.
The “ALJ generally must accept evidence from a vocational expert, who,
based on the claimant’s age, education, work experience, and RFC, testifies
whether there are jobs for such a person in the national economy.” Morgan
v. Barnhart, 142 Fed.Appx. 716, 720-21 (4th Cir. 2005).
In this case, the ALJ determined that the plaintiff had mild limitations in
concentration, persistence, pace, social functioning and activities of daily
living, but did not include those limitations in his RFC assessment or
hypothetical to the VE. Upon remand, should the ALJ find that the plaintiff’s
limitations are supported by the medical evidence and are otherwise
uncontroverted, the ALJ must include those limitations in his hypothetical to
the VE. If, however, the ALJ determines that the limitations are supported by
the medical evidence, but are opposed by the other evidence in the record,
the ALJ need not include those limitations in his hypothetical to the VE.
15
Finally, the plaintiff argues that the ALJ erred when he attributed great
weight to the opinion of State Agency doctor Navjeet Singh, M.D., who
opined, in part, that the plaintiff should avoid exposure to hazards, such as
machinery, heights, etc., but the ALJ only included exposure to heights in his
RFC, without discussion of exposure to other hazards. The plaintiff also
argues that the ALJ’s failure to include additional limitations goes against the
testimony of the VE, who testified that the plaintiff’s past work involved
hazards aside from heights, including operating equipment and dangerous
implements.
Initially, upon review of the record, Dr. Singh completed a Disability
Determination Explanation form on which he indicated that the plaintiff had
environmental limitations and, as a result, was asked to rate the plaintiff’s
limitations in various areas. One area reflects “Hazards (machinery, heights,
etc.).” In response, Dr. Singh responded “Avoid concentrated exposure,” but
did not provide any specific hazard restrictions or any other explanation. As
such, the court does not find the ALJ was required to consider limitations
which Dr. Singh did not specifically assert. However, upon questioning by the
ALJ regarding the impact the plaintiff’s headaches and dizziness, the VE
testified that the plaintiff’s past relevant work had hazards, including working
around dangerous implements, where balance/dizziness would be an issue.
While considering the need to avoid heights and uneven ground in the
plaintiff’s RFC assessment, presumably because of the plaintiff’s
16
balancing/dizziness issues, the ALJ did not consider the VE’s testimony
regarding other hazards, which he should have done, absent an explanation
as to why such was not necessary. As such, the plaintiff’s motion for summary
judgment will be granted on this basis as well.
V.
CONCLUSION
For the reasons stated above, the plaintiff’s motion for summary
judgment, (Doc. 7), is GRANTED, the defendant Commissioner’s motion for
summary judgment, (Doc. 9), is DENIED. Pursuant to 42 U.S.C. §405(g), the
decision of the Commissioner will be VACATED and the instant action
REMANDED for further proceedings consistent with this opinion. An
appropriate order will be issued.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: September 28, 2018
O:\Mannion\shared\MEMORANDA - Delaware Cases\17-490-01.wpd
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