Scott v. Berryhill

Filing 16

MEMORANDUM OPINION. Signed by Judge Malachy E. Mannion on 8/14/19. (Sempa, Barbe)

UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
PATSY D. SCOTT
Plaintiff

:

ANDREW M. SAUL1
Defendant

CIVIL ACTION NO. 1:17-1659

:

v.

:

(JUDGE MANNION)

:
:
MEMORANDUM

I.

INTRODUCTION

Patsy D. Scott (“Scott”) brings this action under 42 U.S.C. §§405(g),
1383(c)(3) to review the final decision of the Commissioner of Social Security
(“Commissioner”) denying her claims for Social Security Disability Insurance
Benefits (“DIB”) and Social Security Income Benefits (“SSI”). (Doc. 2). An
Administrative Law Judge (“ALJ”) concluded that Scott is capable of
performing past relevant work and, thus, is not entitled to DIB or SSI. (Doc.
7-2, at 25-26). After review of the ALJ’s decision was denied, it became the
final decision of the Commissioner. (Doc. 7-2, at 1). Scott alleges that the
ALJ erred: (1) in finding Scott’s mental impairments were non-severe; (2) in

1

Andrew M. Saul was sworn in as Commissioner of Social
Security on June 17, 2019. The court has substituted him with
the previous defendant in this action under Federal Rule of Civil
Procedure 25(d).

finding that Scott was able to return to her past relevant work; and (3) in
failing to apply the medical-vocational guidelines. (Doc. 11-1).
The record in this action has been reviewed as instructed by 42 U.S.C.
§405(g) to determine whether there is substantial evidence to support the
Commissioner’s decision denying Scott’s claim for DIB and SSI under the
Social Security Act (“Act”). 42 U.S.C. §§401-433, 1381-1383f.
For the reasons set forth herein, Scott’s motion for summary judgment
(Doc. 11) will be DENIED, the Commissioner’s cross-motion for summary
judgment (Doc. 12) will be DENIED, the Commissioner’s decision denying
DIB and SSI will be VACATED, and this matter will be REMANDED to the
Commissioner under 42 U.S.C. §405(g).

II.

BACKGROUND
a. Procedural History

Scott applied for DIB on December 3, 2013, alleging disability
beginning on January 1, 2012 (Doc. 7-5, at 2-3) and applied for SSI on
December 17, 2013, alleging disability beginning on December 17, 2013
(Doc. 7-5, at 4-13). Scott’s DIB and SSI applications were both initially denied
on March 6, 2014 (Doc. 7-3, at 13-34), and were again denied on
reconsideration on September 25, 2014 (Doc. 7-3, at 37-62).
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On December 10, 2014, Scott filed a request for a hearing before an
Administrative Law Judge (“ALJ”). (Doc. 7-4, 19-20). Scott was represented
by counsel at the hearing held on February 17, 2017, via video conference.
(Doc. 7-2, at 32-59). On March 24, 2017, the ALJ issued a decision denying
Scott’s claims for DIB and SSI. (Doc. 7-2, at 10-26). Scott requested review
of the ALJ’s decision by the Social Security Administration’s Appeals Council
(“Appeals Council”) on May 22, 2017. (Doc. 7-4, at 83-85). The Appeals
Council denied Scott’s request for review on September 12, 2017. (Doc. 72, at 2-6). Therefore, the ALJ’s decision denying Scott DIB and SSI became
the final decision of the Commissioner. 20 C.F.R. §§404.955, 404.981; Sims
v. Apfel, 530 U.S. 103, 106-07 (2000).
On November 15, 2017, Scott filed a complaint seeking judicial review
of the ALJ’s decision. (Doc. 2). Scott filed her motion for summary judgment
(Doc. 11) along with a brief in support (Doc. 11-1) on February 19, 2019. The
Commissioner filed her cross-motion for summary judgment (Doc. 12) with
a brief in support of her motion and in opposition of Scott’s motion (Doc. 13)
on March 21, 2019. The motions are now ripe for disposition.

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b. The Administrative Hearing
At the hearing held before an ALJ on February 17, 2017, Scott testified
along with vocational expert Brade Berger (“VE Berger”). Scott was
represented at the hearing by Attorney Vanessa Guslav. The testimony may
be summarized as follows.

i. Scott’s Testimony
At the time of the hearing, Scott was 58 years old, stood 5’ 3.5” tall,
and weighed about 202 pounds. (Doc. 7-2, at 37-38). She completed college
and holds a degree in the field of accounting. (Doc. 7-2, at 39). In addition to
working as an accounting clerk, Scott has held positions at an Amazon
warehouse, her sister’s daycare, and AstraZeneca Pharmaceuticals. (Doc.
7-2, at 39-43). Scott quit her most recent job as an accounting clerk for a
funeral home because she had trouble keeping up with the job performance
expectations that she had for herself and because the job required more than
what she expected. (Doc. 7-2, at 39-40). Scott lives with her sister, who does
most of the chores around the house, and her son Patrick. (Doc. 7-2, at 5051).
Scott estimates that she can walk for 10 minutes before she needs to
stop and catch her breath. (Doc. 7-2, at 44). She also believes that she can
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stand for 15 minutes before she needs to sit down. (Doc. 7-2, at 49). Scott
testified that her knees are horrible, and her legs and left foot hurt very bad.
(Doc. 7-2, at 45). When asked whether she can kneel, Scott said, “[n]ot that
good.” (Doc. 7-2, at 49). Scott has no difficulties sitting down. (Doc. 7-2, at
49). She estimates that she can lift or carry a maximum of 5-10 pounds. (Doc.
7-2, at 50). Scott stated that her biggest challenge, physically, is going
upstairs. (Doc. 7-2, at 50).
Concerning her diabetes, Scott stated that her biggest challenge is
monitoring her low blood sugar. (Doc. 7-2, at 45). Scott believes that when
her blood sugar gets really low that she becomes really irritable and that she
needs to immediately eat candy or drink a sugary beverage. (Doc. 7-2, at
45). Scott testified that she can work steady at a job where she is sitting
down, but she needs breaks periodically to ensure her blood sugar level is
proper. (Doc. 7-2, at 55).
Scott believes that her anxiety and depression are mental limitations
that prevent her from working. (Doc. 7-2, at 47). She only sleeps 3-4 hours
each night because she is always thinking about her health. (Doc. 7-2, at
48).

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ii. VE Berger’s Testimony
The ALJ asked VE Berger a hypothetical question in which he was
asked whether an individual—the same age, vocational background, and
education as Scott, who was restricted to a sedentary exertional level and
limited to only occasional climbing, balancing, stooping, kneeling, crouching,
and crawling—could perform any of the past work done by Scott. (Doc. 7-2,
at 57). Based on the hypothetical person’s supposed abilities, VE Berger
stated that such a person would be able to perform Scott’s past job as an
accounting clerk. (Doc. 7-2, at 57).
Then, the ALJ asked VE Berger whether the additional limitation—that
this hypothetical person was limited to only simple, routine, and repetitive
tasks with little interaction with the public or coworkers—would change his
opinion. (Doc. 7-2, at 57). With this additional limitation, VE Berger stated
that this hypothetical person would not be able to perform Scott’s past work.
(Doc. 7-2, at 57). Also, VE Berger states that Scott did not possess any
transferable skills to any other sedentary job, even at a lower skill level. (Doc.
7-2, at 57-58).
In response to questioning from Scott’s attorney, VE Berger opined
that a person who was likely to miss four or more days of work each month
because of their conditions would be unable to perform any job. (Doc. 7-2,
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at 58). Also, VE Berger testified that generally, employers tolerate a
maximum of five percent of time required for breaks throughout the workday.
(Doc. 7-2, at 58).

c. The ALJ’s Findings
The ALJ’s decision was unfavorable to Scott. The ALJ did find that
Scott has severe impairments in the form of degenerative joint disease,
diabetes mellitus, and obesity. (Doc. 7-2, at 15). Despite these findings, the
ALJ found that Scott has the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except
she “is limited to only occasional climbing, balancing, stooping, kneeling,
crouching, and crawling.” (Doc. 7-2, at 18).
The ALJ also found that Scott “is capable of performing [her] past
relevant work as an accounting clerk.” (Doc. 7-2, at 25). Accordingly, the ALJ
found that Scott had not been disabled from her alleged onset date through
the date of his decision.

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III.

LEGAL STANDARD
a. Disability Determination Process

The Commissioner is required to use a five-step analysis to determine
whether a claimant is disabled2. The Commissioner must consider: 1)
whether the applicant is engaged in a substantial gainful activity; 2) whether
the applicant is severely impaired; 3) whether the impairment matches or is
equal to the requirements of one of the listed impairments, whereby she
qualifies for benefits without further inquiry; 4) whether the claimant can
perform her past work; and 5) whether the claimant’s impairment together
with her age, education, and past work experiences preclude her from doing

“Disability” is defined as the “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. §423(d)(1)(A). The Social Security Act further
provides that an individual is disabled
2

only if [her] 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, regardless of whether such
work exists in the immediate area in which [she] lives, or whether
a specific job vacancy exists for [her], or whether [she] would be
hired if [she] applied for work.
42 U.S.C. §423(d)(2)(A).
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any other sort of work. 20 C.F.R. §§404.1520(b)-(g), 416.920(b)-(g); see
Sullivan v. Zebley, 493 U.S. 521, 525-26 (1990).
The disability determination process involves shifting burdens of proof.
The initial burden rests with the claimant to demonstrate that she is unable
to engage in past relevant work. If the claimant satisfies their burden, then
the Commissioner must show that jobs exist in the national economy that a
person with the claimant’s abilities, age, education, and work experience can
perform. Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at the fourth step
of the process when the ALJ found that Scott is capable of performing her
past relevant work. (Doc. 7-2, at 26).

b. Standard of Review
This court’s review of the Commissioner’s final decision is limited to
determining whether there is substantial evidence to support the
Commissioner’s decision. 42 U.S.C. §405(g); Hartranft v. Apfel, 181 F.3d
358, 360 (3d Cir. 1999). Substantial evidence means “more than a mere
scintilla.” It means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971); see also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.
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1981). The United States Court of Appeals for the Third Circuit (“Third
Circuit”) further explained this standard in Kent v. Schweiker, 710 F.2d 110,
114 (3d Cir. 1983).
This oft-cited language is not . . . a talismanic or self-executing
formula for adjudication; rather, our decisions make clear that
determination of the existence vel non of substantial evidence is
not merely a quantitative exercise. 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., that
offered by treating physicians)—or if it really constitutes not
evidence but mere conclusion. See Cotter, 642 F.2d at 706 (“
‘Substantial evidence’ can only be considered as supporting
evidence in relationship to all the other evidence in the record.”)
(footnote omitted). The search for substantial evidence is thus a
qualitative exercise without which our review of social security
disability cases ceases to be merely deferential and becomes
instead a sham.
This guidance makes clear that it is necessary for the Commissioner
to analyze all evidence. If they have not done so and have not sufficiently
explained the weight given to all probative exhibits, “to say that [the] decision
is supported by substantial evidence approaches an abdication of the court’s
duty to scrutinize the record as a whole to determine whether the conclusions
reached are rational.” Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
1979). In Cotter, the Third Circuit clarified that the ALJ must not only state
the evidence considered which supports the result but also indicate what
evidence was rejected: “[s]ince it is apparent that the ALJ cannot reject
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evidence for no reason or the wrong reason, an explanation from the ALJ of
the reason why probative evidence has been rejected is required so that a
reviewing court can determine whether the reasons for rejection were
improper.”

Cotter, 642 F.2d at 706-07.

However, the ALJ need not

undertake an exhaustive discussion of all the evidence. See, e.g., Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000). “There is no requirement that the ALJ
discuss in [their] opinion every tidbit of evidence included in the record.” Hur
v. Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004). “[W]here [a reviewing court]
can determine that there is substantial evidence supporting the
Commissioner’s decision, . . .

the Cotter doctrine is not implicated.”

Hernandez v. Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d
Cir. 2004).
A reviewing court may not set aside the Commissioner’s final decision
if it is supported by substantial evidence, even if the court would have
reached different factual conclusions. Hartranft, 181 F.3d at 360 (citing
Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986);
42 U.S.C. §405(g) (“[t]he findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
“However, even if the [Commissioner’s] factual findings are supported by
substantial evidence, [a court] may review whether the [Commissioner], in
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making [their] findings, applied the correct legal standards to the facts
presented.” Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983)
(internal quotation omitted). Where the ALJ’s decision is explained in
sufficient detail to allow meaningful judicial review and the decision is
supported by substantial evidence, a claimed error may be deemed
harmless. See, e.g., Albury v. Commissioner of Social Security, 116 F. Appx.
328, 330 (3d Cir. 2004) (citing Burnett v. Commissioner, 220 F.3d 112 (3d
Cir. 2000) (“[O]ur primary concern has always been the ability to conduct
meaningful judicial review.”). Finally, an ALJ’s decision can only be reviewed
by a court based on the evidence that was before the ALJ at the time he or
she made his or her decision. Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir.
2001).

IV.

DISCUSSION

In her motion for summary judgment, Scott argues that the ALJ erred:
(1) in finding Scott’s mental impairments were non-severe; (2) in finding that
Scott was able to return to her past relevant work; and (3) in failing to apply
the medical-vocational guidelines. (Doc. 11-1).
In her first objection, Scott alleges, among other things, that the ALJ
erred by failing to address whether Scott’s “diagnosis of generalized anxiety
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disorder was a medically determinable impairment . . . .” (Doc. 11-1, at 14).
This court’s review of Scott’s medical records reveals that on December 20,
2016, she sought treatment for the first time for depression and anxiety from
Nurse Practitioner Ema Ndi3 (“Ndi”). (Doc. 7-11, at 10-13). In her notes from
that meeting with Scott, Ndi states that Scott will benefit from treatment for
her anxiety and depression and that she is going to start Scott’s treatment
by targeting her anxiety. (Doc. 7-11, at 10-13). Ndi prescribed Scott “0.5mg”
of Klonopin daily as needed for anxiety. (Doc. 7-11, at 10-13). Additionally,
Ndi noted that Scott has generalized anxiety disorder. (Doc. 7-11, at 10-13).
At step two in the disability determination process, the ALJ failed to
discuss Scott’s generalized anxiety disorder. The ALJ’s decision is silent as
to whether Scott’s generalized anxiety disorder is a medically-determinable
impairment. “An ALJ is required to consider impairments a claimant says
[s]he has, or about which the ALJ receives evidence.” Rutherford v. Barnhart,
399 F.3d 546, 552 (3d Cir. 2005) (internal citations omitted). Considering the
records indicating that Scott has generalized anxiety disorder were part of

The medical records reference Ndi as “Ndi, Ema PMHNP-BC.”
(Doc. 7-11, at 13). This court takes judicial notice that Ndi’s title
“PMHNP-BC” indicates that she is a Board Certified PsychiatricMental Health Nurse Practitioner.
3

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the record, which was readily available to the ALJ, he should have
considered this impairment and indicated such in his decision.
Rather than addressing each impairment contained in the record
individually, the ALJ stated, generally, that all impairments “alleged and
contained in the record, are non-severe or not medically determinable[,]”
except those he specifically indicated as severe. (Doc. 7-2, at 16). Under that
approach, it is impossible for the court to determine what amount, if any, of
consideration that the ALJ afforded Scott’s generalized anxiety disorder. The
Commissioner argues that “further discussion of [Scott’s] anxiety would not
have changed the ALJ’s decision because the four functional areas used to
evaluate anxiety are the same four areas used to evaluated depression.”
(Doc. 13, at 18). However, this argument fails to consider the cumulative
effect of multiple mental illnesses could change the ALJ’s impression of the
severity of Scott’s limitations. The ALJ’s conclusion—that Scott had only mild
limitations in the four “paragraph B” areas of functionality—only considered
Scott’s depression. If the ALJ considered Scott’s depression and anxiety
together, the ALJ might have concluded that Scott has more than a mild
limitation in one or more of the four “paragraph B” areas. This court’s role is
not to guess or speculate as to what the ALJ would have done; rather, it is

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to determine whether the ALJ’s decision, as it is currently written, is
supported by substantial evidence.
Without the ALJ’s evaluation of Scott’s generalized anxiety disorder,
this court cannot conclude that the ALJ’s decision is supported by substantial
evidence.

V.

CONCLUSION

Based on the foregoing, Scott’s motion for summary judgment (Doc.
11) shall be DENIED, the Commissioner’s cross-motion for summary
judgment (Doc. 12) shall be DENIED, the Commissioner’s decision denying
DIB and SSI shall be VACATED, and this matter shall be REMANDED to
the Commissioner under 42 U.S.C. §405(g). An appropriate order shall
issue.

s/

Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: August 14, 2019
17-1659-01

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