BUFFINGTON v. COMMISSIONER OF SOCIAL SECURITY
Filing
14
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/4/2013. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CHELSEA D. BUFFINGTON,
Plaintiff,
HONORABLE JEROME B. SIMANDLE
CIVIL NO. 12-100 (JBS)
v.
OPINION
COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.
APPEARANCES:
Michael J. Brown, Esq.
WOLF & BROWN, LLC
228 Kings Highway East
Haddonfield, NJ 08033
Attorney for Plaintiff
Paul J. Fishman
UNITED STATES ATTORNEY
By: David L. Brown
Special Assistant United States Attorney
Social Security Administration
Office of the General Counsel
26 Federal Plaza, Suite 3904
New York, NY 10278
Attorney for Defendant
SIMANDLE, Chief Judge:
I. INTRODUCTION
This matter comes before the Court pursuant to 42 U.S.C. §
405(g) for review of the final decision of the Commissioner of
the Social Security Administration denying Plaintiff Chelsea
Buffington’s application for period of disability and disability
insurance benefits under Title II of the Social Security Act (the
“Act”).
Plaintiff claims that the Administrative Law Judge (“ALJ”)
made four errors in determining that she was not disabled under
§§ 216(i) and 223(d) of the Act: (1) concluding, without support
of substantial evidence, that Plaintiff would not be disabled
within the meaning of the Act if she stopped abusing drugs and
alcohol, (2) failing to consider the effect of migraines on
Plaintiff’s residual functional capacity, (3) failing to consider
testimony by Plaintiff’s father, and (4) failing to call a
vocational expert when evaluating Plaintiff’s ability to work.
For the reasons explained below, the Court will defer to the
ALJ’s determination on the first three claims, but will vacate
and remand the matter to the ALJ for failing to call a vocational
expert or otherwise explain the conclusion that Plaintiff’s
limitations would have little or no effect on Plaintiff’s ability
to perform unskilled, light work.
II.
BACKGROUND
A. Procedural background
Plaintiff Chelsea Buffington was born on September 21, 1982,
and, at age 20, was diagnosed with a mood disorder on the bipolar
spectrum. [Pl. Br. at 14, 18.] Plaintiff claims that she has
suffered from depression, anxiety, migraine headaches and
substance abuse. [Id. at 14-16.] She applied for disability
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benefits on March 5, 2009, and both her initial application and
her application for reconsideration were denied. [Id. at 5.]
After a hearing before ALJ Frederick Timm, the ALJ denied
Plaintiff’s application on April 13, 2011. [Id.] The Social
Security Appeals Council denied review without opinion,
confirming the ALJ’s decision. [Id.] Plaintiff then timely filed
the instant action. [Id.]
B. Medical history
Plaintiff was first seen at Life Counseling Services on
November 3, 2003, where she was diagnosed with an unspecified
mood disorder on the bipolar spectrum. [Id. at 14; R. at 238-46.]
She reported anger issues, depression, anxiety attacks, substance
abuse in remission, and migraines, and continued treatment there
through May 1, 2004. [Id.]
Plaintiff began seeing Dr. Michael Shore, a psychiatrist, on
July 28, 2004, and Dr. Shore prescribed the medication Depakote
to stabilize her moods. [Pl. Br. at 15; R. at 249.] On August 12,
2004, Dr. Shore noted that Plaintiff “[a]ppears to be doing quite
well” and observed that she was “clean + sober.” [Id.] Plaintiff
reported a panic attack a week later, and missed her next
appointment, but returned on August 24, 2004, complaining of
migraines, photophobia and nausea. [Id.] Dr. Shore increased the
Depakote prescription, and noted that Plaintiff was “staying
clean.” [Id.] Dr. Shore saw Plaintiff twice more in September and
3
found her “mood stable” and noted she was “doing well in school”
and “doing very well.” [Pl. Br. at 15; R. at 250.] Dr. Shore
observed no signs of drug use and reported “no relapse of drugs.”
[Id.] Dr. Shore again increased Plaintiff’s medication after
Plaintiff experienced more episodes of anger and missed class.
[Pl. Br. at 16; R. at 251.] In November, Plaintiff reported
thoughts of using drugs and increased cravings, and on December 9
canceled her session due to a “friend’s emergency.” [Id.]
Plaintiff began to see Dr. Shore only infrequently. On March
22, 2005, Dr. Shore noted that Plaintiff continued to take
Depakote and was “clean completely from drugs” while being “full
time @ school - close to Assoc. degree.” [Pl. Br. at 16; R. at
252.] On April 5, 2005, Plaintiff missed another session. Dr.
Shore’s next entry was made on April 21, 2007, when he believed
that Plaintiff had been using drugs, because she was showing
symptoms consistent with post-acute withdrawal. [Id.] On May 22,
2007, Plaintiff refused to take a drug test but sought more
tablets of Suboxone and Dr. Shore recommended Plaintiff begin a
30-day, inpatient rehabilitation program. [R. at 254.] Because of
Plaintiff’s suspected drug use and a lack of cooperation, Dr.
Shore terminated his professional relationship with Plaintiff.
[Id.]
On January 16, 2007, Dr. David Roeltgen, a neurologist at
Cooper University Hospital, evaluated Plaintiff for her
4
headaches. [R. at 295-96.] Dr. Roeltgen wrote that Plaintiff’s
migraines “have never been very frequent and they are currently
occurring about three to four times” a month. [R. at 295.] Dr.
Roeltgen, apparently unaware of Plaintiff’s substance abuse
problem, noted that Plaintiff could control the headaches with
Tramadol, an opioid analgesic. [R. at 22, 295.] He opined that
other medications might control her “infrequen[t]” headaches, but
recommended no change in treatment. [R. at 296.]
C. ALJ’s decision
After reviewing the applicable law, the ALJ found that
Plaintiff met the insured status requirements of the Social
Security Act through September 30, 2006. [R. at 20.] The ALJ
proceeded to conduct the five-step analysis set forth in 20
C.F.R. § 404.1520(a)(4) to determine if Plaintiff was “disabled”
for purposes of the Act.
In step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since October 1, 2003, the alleged
onset date of her disability. [R. at 20.] In step two, the ALJ
concluded that Plaintiff had “severe medically determinable
impairments that caused significant limitation in the claimant’s
ability to perform basic work activities”: migraines, bipolar
disorder and polysubstance dependence. [Id.] In step three, the
ALJ determined that the combination of Plaintiff’s impairments
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met or medically equaled the impairments listed in sections 12.04
and 12.09 of 20 C.F.R. Pt. 404, Subpt. P, Appx. 1. [R. at 22-27.]
Because the record contained medical evidence of drug
addiction, the ALJ next discussed whether the substance disorder
was “a contributing factor material to the determination of
disability” pursuant to 20 C.F.R. § 404.1535. The key inquiry for
the ALJ was whether Plaintiff would still be disabled if she
stopped using drugs or alcohol.
The ALJ noted that while Plaintiff was under the treatment
of Dr. Shore, she developed a problem with opiates and had become
addicted to Oxycontin to the point where she was treated briefly
for detoxification days before an appointment with Dr. Shore, at
which she denied having used drugs in the prior week. [R. at 23.]
In May 2007, Plaintiff ran out of prescribed medicine too
quickly, and sought more from Dr. Shore, suggesting to him a
relapse into drug abuse. [Id.] The ALJ further discussed
Plaintiff’s treatment with various doctors and the effects of
drug abuse on her condition. [R. at 23-25.] The ALJ highlighted a
report from a state agency’s consultant psychologist who,
summarizing Dr. Shore’s notes, stated that Plaintiff showed “an
almost immediate stabilization . . . when she quit using drugs
and was put on Depakote . . . .” [R. at 25, 290.] The ALJ stated:
“I find that in several occasions that the claimant has been
briefly abstinent, she has begun to improve promptly, but she
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does not persist with the treatment.” [R. at 26.] The ALJ
observed that “the record shows no evidence of a full manic
episode, absent alcohol and drugs.” [R. at 27.] The ALJ concluded
that Plaintiff “improves with abstinence” and the “fact that she
worsens due to the substance abuse was clearly shown by Dr.
Shore’s records. As soon as she began presenting symptoms, he
accurately suspected an addiction relapse. Therefore, I must find
that her alcoholism and substance addiction disorder are material
to the determination of disability.” [R. at 26-27.]
The ALJ found that if Plaintiff stopped the substance use,
her limitations stemming from “occasional migraine episodes” and
bipolar disorder would still cause “more than a minimal impact on
the claimant’s ability to perform basic work activities” and thus
“would continue to have a severe impairment or combination of
impairments.” [R. at 27.] However, the ALJ concluded that the
remaining impairments would not meet or medically equal any of
the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, Appx. 1.
[R. at 27.]
The ALJ then found that, if she stopped the substance abuse,
Plaintiff would have the “residual functional capacity” (or
“RFC”) to “perform light work as defined in 20 CFR 404.1567(b)
except that she should be limited to perform simple, routine,
repetitive tasks, in no significant interaction with the general
public, and with only occasional interaction with supervisors and
7
co-workers.” [R. at 27.] Completing steps four and five of the
regulatory analysis, the ALJ found that Plaintiff had no past
relevant work, she was a “younger individual” on the alleged
disability onset date, and she had at least a high school
education and could communicate in English. [R. at 28.] The ALJ
concluded that, in light of these factors and Plaintiff’s RFC, if
Plaintiff stopped substance use, “there would be a significant
number of jobs in the national economy that the claimant could
perform . . . .” [R. at 29.] Therefore, “the claimant has not
been disabled within the meaning of the Social Security Act at
any time from the alleged onset date through the date of this
decision,” using the framework of 20 C.F.R. Pt. 404, Subpt. P,
Appx. 2 § 202.20. [Id.]
III. DISCUSSION
A. Standard of review
Federal statute empowers the Court to review the
Commissioner’s decision to deny disability benefits. 42 U.S.C. §
405(g). The Court’s review is deferential to the Commissioner’s
decision, and the Commissioner’s factual findings are conclusive
where they are supported by “substantial evidence.” Id.; see also
Cunningham v. Comm’r of Soc. Sec., No. 11-2633, 2012 WL 6200379,
at *2 (3d Cir. Dec. 13, 2012) (summarizing the deferential
standard of review). Substantial evidence is defined as “more
than a mere scintilla,” meaning “such relevant evidence as a
8
reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 400 (1971); see
also Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d Cir.
2012) (using the same language as Richardson). The Court may not
weigh the evidence or substitute its own conclusions for those of
the ALJ. Malave v. Astrue, No. 08-4551, 2009 WL 3151142, at *5
(D.N.J. Sept. 29, 2009).
B. Analysis
Plaintiff raises four primary objections to the ALJ
decision. First, she argues that the ALJ did not have substantial
evidence to support the conclusion that Plaintiff would not be
disabled if she stopped abusing drugs and alcohol. Second, she
argues that the ALJ failed to consider the effect of migraines on
Plaintiff’s residual functional capacity. Third, she argues that
the ALJ failed to consider relevant testimony by Plaintiff’s
father. Finally, she argues that the ALJ failed to call a
vocational expert when evaluating Plaintiff’s ability to work.
i. Whether substantial evidence supports the finding that
Plaintiff’s impairments would not meet, or medically equal, the
regulatory impairment listings if she stopped abusing drugs
Plaintiff argues that the ALJ’s conclusion that she would
not be disabled if she stopped abusing drugs is without support
of substantial evidence. [Pl. Br. at 32.] Plaintiff objects to
the fact that, while analyzing the effect of Plaintiff’s drug use
on her disability under 20 C.F.R. § 404.1535, the ALJ accorded
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“[g]reat weight” to the state agency’s consulting doctors’
reports. [R. at 27, 278-294, Exhibits 7F-10F.] Plaintiff argues
that these reports all stated there was “insufficient medical
evidence” to evaluate Plaintiff’s claim.1 [Pl. Br. at 34-35.]
Plaintiff also argues that Dr. Shore’s notes, on which both the
ALJ and the state agency’s consultants relied, indicate that
Plaintiff “present[ed] the same symptoms while she was sober” as
when she was using drugs. [Id. at 37.]
The Commissioner contends that Dr. Shore observed that
Plaintiff functioned well when sober and that her impairments
worsened in correlation with Dr. Shore’s observations of
Plaintiff’s drug abuse, even when she declined drug tests or
denied drug use. [Def. Opp’n at 6-7.] The Commissioner argues
1
On August 10, 2009, Jane Curran conducted a psychiatric
review and wrote: “It appears likely that these [hiatuses from
treatment with Dr. Shore] were periods when [Plaintiff’s] drug
use exaccerbated [sic] her problems, but there is no evidence in
the file for these periods. There is insufficient medical
evidence to rate this claim.” [R. at 290.]
On August 12, 2009, Jose Acuna wrote that the medical
evidence of record “has termed [Plaintiff’s] migraines
occasional, but overall does not provide an adequate overview of
migraine treatment, efficacy, or frequency. There is insufficient
evidence through which to fully assess the physical component of
the claim.” [R. at 292.]
On November 12, 2009, Joshua Weisbrod conducted a case
analysis and stated that the medical evidence of record “in the
file has been reviewed and shows there is still insufficient
medical evidence prior to the DLI [date last insured] 9/30/06 to
evaluate.” [R. at 293.]
On November 19, 2009, Carol Bruskin conducted a case
analysis and concluded that a “[r]eview of the evidence in file
indicates that there is insufficient evidence to assess this
claim for that period.” [R. at 294.]
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that, based on Dr. Shore’s notes as well as the state agency
reports, there was sufficient evidence to support the ALJ’s
finding that substance abuse was material to her disability.
[Id.]
Courts in the Third Circuit have held that the claimant has
the burden of proof in establishing that drug abuse is or is not
a material factor contributing to disability. See Davis v.
Astrue, 830 F. Supp. 2d 31, 38-39 (W.D. Pa. 2011) (noting that
the Third Circuit declined to resolve the burden issue in McGill
v. Comm’r of Soc. Sec., 288 Fed. Appx. 50, 52-53 (3d Cir. 2008)
and citing district court opinions and other circuit court
opinions placing the burden on the plaintiff-claimant). However,
the ALJ still must identify “substantial evidence” to support his
conclusion of materiality. Davis, 830 F. Supp. 2d at 39 (citing
Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir. 2003)).
In this case, Dr. Shore’s notes are some medical evidence,
more than a mere scintilla, of the fact that Plaintiff
demonstrated high enough functionality to be doing well in
college and approaching her degree when she was clean and sober.
Dr. Shore’s notes also reveal that when Plaintiff demonstrated
signs of drug abuse, including post-acute withdrawal, her overall
functionality appeared to decline. The ALJ also noted a lack of a
full manic episode, absent drug use -- a contention that
Plaintiff does not dispute. Dr. Curran also interpreted Dr.
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Shore’s notes to indicate that Plaintiff’s mood stabilized when
she stopped using drugs and that during periods of sobriety she
“was functional, although not without some symptoms . . . .” [R.
at 290.] A reasonable person might accept this evidence as
adequate to support the conclusion that drug addiction or
alcoholism was a contributing factor material to the
determination of disability. See Hagans, 694 F.3d at 292 (setting
forth the “substantial evidence” standard).
In conducting his analysis of the listed impairments, ALJ
Timm concluded that, absent drug abuse, Plaintiff “would have
mild restriction in activities of daily living, only moderate
difficulties in social functioning, only moderate difficulties in
concentration, persistence or pace, and no episodes of
decompensation.” [R. at 27.] The ALJ determined that Plaintiff’s
remaining limitations “would not cause at least two ‘marked’
limitations or one ‘marked’ limitation and ‘repeated’ episodes of
decompensation” under 20 C.F.R. Pt. 404, Subpt. P, Appx. 1,
listing 12.04. Therefore “the ‘paragraph B’ criteria would not be
satisfied and neither would [t]he ‘paragraph C’ criteria.” [Id.]
The ALJ concluded that Plaintiff would not be disabled if she
stopped using drugs.
Under the deferential standard by which the ALJ’s factual
determinations must be judged, the Court finds there is
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sufficient medical evidence in the record to affirm the ALJ’s
determination on this point.
The fact that state agency consulting doctors found the
medical record to be deficient in certain regards does not erase
the medical evidence within Dr. Shore’s notes. The consulting
doctors found no evidence in the record that warranted
reconsideration of Plaintiff’s denial of benefits. More
importantly, the consulting doctors who found the medical record
insufficient in some respects were not applying the same standard
this Court must apply, and neither were they evaluating precisely
the issue now before the Court. It appears that the consulting
doctors were evaluating Plaintiff’s physical limitations. [See R.
at 292 (“insufficient evidence through which to fully assess the
physical component of the claim”); R. at 293 (finding no change
in the evidence regarding Plaintiff’s migraines).]
Plaintiff argues that the ALJ misread Dr. Shore’s notes in
two ways. First, Plaintiff argues that “although she had some
improvement with Depakote, it was not a panacea. . . . [S]he was
not by any means without symptoms while she was not using drugs
and was on Depakote.” [Pl. Br. at 35.] No one, not even the ALJ,
suggests that Plaintiff would be symptom-free without drug use.
To the contrary, the ALJ found that plaintiff “would still have
occasional migraine episodes and would need consistent treatment
to maintain her bipolar disorder controlled.” [R. at 27.] The ALJ
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stated that Plaintiff’s remaining limitations would have more
than a minimal impact on her ability to perform basic work
activities. [Id.] However, the ALJ also concluded that, absent
drug abuse, Plaintiff would not be so limited as to qualify as
disabled under the Act. Plaintiff’s suggestion that she would
still exhibit symptoms absent drug use is not a sufficient basis
for this Court to disrupt the ALJ determination.
Second, Plaintiff objects to the ALJ’s statement that “[a]s
soon as she began presenting symptoms, [Dr. Shore] accurately
suspected an addiction relapse.” [Pl. Br. at 36.] Plaintiff
assumes that the ALJ was referring to Dr. Shore’s August 18,
2004, entry in which he questions whether Plaintiff’s panic
attack was triggered by addiction. [Id.; R. at 249.] Plaintiff
points out that Dr. Shore did not conclude that Plaintiff’s panic
attack was caused by addiction, and argues that it was improper
for the ALJ to presume “from a question mark that the claimant is
abusing drugs” and that “ALJs are not permitted to make medical
guesses, especially in psychiatric cases.” [Pl. Br. at 37.]
It is not clear to the Court that the ALJ meant to refer
only to the August 18 entry in stating that Dr. Shore accurately
suspected that Plaintiff relapsed into drug use during the time
when she was his patient. Although Plaintiff denied using drugs
to Dr. Shore, and refused to take a drug test on at least one
occasion, Dr. Shore suspected Plaintiff was using drugs when she
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exhibited post-acute withdrawal symptoms, for example, or when
she requested more medication before she should have run out of
the old prescription. In fact, the record shows that Plaintiff
had an inpatient detoxification during that period of time but
still told Dr. Shore that she had not used opiates or other drugs
in the past week. [R. at 252.] When Dr. Shore wrote Plaintiff of
his concerns about her drug use and to terminate their
relationship, he suspected that Plaintiff was using drugs. [R. at
254.] The Court does not read the ALJ’s statement about Dr.
Shore’s supposition as referring only to Dr. Shore’s suspicion of
drug use on August 18, 2004, but in general to her documented
drug use during the period when she avoided questions about, or
tests to determine, her drug use. The ALJ’s statement about Dr.
Shore’s suspicions is not inaccurate, and it is not grounds for
reversing the ALJ’s determination.
The Court will defer to the ALJ’s determination.
ii. Whether the ALJ failed to consider the effect of
migraines on Plaintiff’s residual functional capacity
The ALJ found that Plaintiff, if she stopped using drugs,
would have an RFC “to perform light work as defined in 20 CFR
404.1567(b) except that she should be limited to perform simple,
routine, repetitive tasks in no significant interaction with the
general public, and with only occasional interaction with
supervisors and co-workers.” [R. at 27.] The ALJ states generally
that “the undersigned has considered all symptoms and the extent
15
to which these symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence . . . .”
[R. at 28.] The ALJ found that Plaintiff’s “medically
determinable impairments could reasonably be expected to produce
the alleged symptoms; however the claimant’s statements
concerning the intensity, persistence and limited effects of
these symptoms are not credible to the extent they are
inconsistent” with the RFC. [Id.] The ALJ stated he gave great
weight to Dr. Shore’s records and those of the state agency’s
consultants. [Id.] The ALJ found his RFC determination to be
supported by
treatment sources’ records and statements; the
claimant’s credible subjective complaints, her
testimony and demeanor at the hearing; the course of
treatment and medication, the claimant’s activities of
daily living, the consultative evaluations in file, and
in part by the residual functional capacity medical
opinions by the State Agency’s consultants in file.
[Id.]
Plaintiff argues that the ALJ must consider all impairments,
even non-severe impairments, when making his RFC assessment,
under 42 U.S.C. § 423(d)(2)(B), and that the ALJ gave “no
consideration . . . to these headaches in making the RFC
determination.” [Pl. Br. at 22-23.] Plaintiff faults the ALJ for
recognizing that Plaintiff “cannot, and should not, take
medications prescribed by Dr. Roeltgen” -- Tramadol, a narcotic - to treat her migraines because of her substance abuse disorder,
16
but nonetheless concluding that Plaintiff could handle limited
light work. [R. at 22, 27.] Plaintiff argues the ALJ failed to
include migraines in the RFC determination, despite finding the
migraines severe. [Pl. Br. at 26; R. at 22.] Plaintiff claims
“[i]t is a mystery of how this RFC accommodates sudden blinding
headaches.” [Pl. Br. at 26.]
The Commissioner responds that the ALJ considered
Plaintiff’s migraines and acknowledged their severity, but also
accepted the characterization of the migraines as infrequent.
[Def. Opp’n at 8.] The Commissioner argues that “[t]here is
nothing about Dr. Roeltgen’s assessment” or that of any other
doctor “to suggest that plaintiff’s migraine headaches had
resulted in any work-related limitations beyond the ALJ’s
residual functional capacity finding.” [Id.] On this point, the
Commissioner cites Neugebauer v. Astrue, No. 09-261J, 2011 WL
996801, at *5 (W.D. Pa. Mar. 17, 2011), in which the plaintiff,
who suffered from migraines, similarly argued that the ALJ failed
to consider migraines in determining her RFC. The court in that
case stated that the ALJ acknowledged that migraines were a
severe impairment, but that “plaintiff has not suggested any
additional restrictions arising from her migraines that would be
more limiting than those already accounted for in the ALJ’s
residual functional capacity finding.” Neugebauer v. Astrue, 2011
WL 996801, at *5.
17
In reply, Plaintiff attempts to distinguish Neugebauer by
saying that, in that case, “the plaintiff had not suggested any
limitations due to migraine headaches” but here, the “ALJ found
that the neurologist found that the plaintiff was getting good
relief with Tramadol” and the “plaintiff should not, and does
not, take it.” [Pl. R. Br. at 4-5.] Plaintiff argues that her
migraines are more frequent and more severe than the neurologist
reported. [Id. at 5.] Plaintiff suggests that “the RFC should
have included the limitation that the plaintiff can be expected
to have, without prior warning, three or four severe headaches of
at least several hours duration” per month. [Id.]
While the ALJ did not specifically mention migraines in his
discussion of Plaintiff’s RFC, the ALJ did consider the medical
evidence concerning Plaintiff’s migraines and, in his discussion
of Plaintiff’s RFC, specifically discounted Plaintiff’s testimony
regarding the intensity and frequency of her symptoms. [R. at 22,
28.] Courts “ordinarily defer to an ALJ’s credibility
determination because he or she has the opportunity at a hearing
to assess a witness’s demeanor.” Coleman v. Comm’r of Soc. Sec.,
No. 11-3938, 2012 WL 3835403, at *2 (3d Cir. Sept. 5, 2012). In
addition, there certainly is evidence in the record that
Plaintiff’s migraines were infrequent. [R. at 295 (Dr. Roeltgen
stating the migraines “have never been very frequent” and
occurred in late 2006 and early 2007 three to four times a
18
month); R. at 292 (consultant Jose Acuna stating that the medical
evidence of record “has termed the migraines occasional” before
stating the record does not provide an “adequate overview of
migraine treatment, efficacy, or frequency.”); R. at 249 (Dr.
Shore stating migraines occurred occasionally, in an August 24,
2004, entry).] The ALJ explicitly recognized that, if Plaintiff
stopped abusing drugs, she “would still have occasional migraine
episodes,” but that “no brain lesion has been found related to
migraine.” [R. at 27.] The ALJ determined, based on the evidence
before him, that the limitation would not prevent Plaintiff from
engaging in limited light work. [Id.]
The Court does not agree with Plaintiff that Neugebauer is
distinguishable here. In that case, as here, the ALJ determined
that migraines were a severe impairment. See Neugebauer, 2011 WL
996801, at *5. In Neugebauer, the plaintiff also suffered from
chronic low back pain, history of head injury, neck pain,
hepatitis C, several mental disorders and a history of substance
abuse. Id. at *1. The ALJ found that the combination of
impairments did not meet or equal any of the impairments listed
in 20 C.F.R. Pt. 404, Subpt. P, Appx. 1. Id. Likewise, here,
Plaintiff’s combination of impairments, absent substance abuse,
did not meet or medically equal the impairments in Appendix 1.
[R. at 27.] In both cases, the ALJ determined that the plaintiffs
could perform light work, with certain additional restrictions.
19
Neugebauer, 2011 WL 996801, at *2; R. at 27. Although the
plaintiff in Neugebauer did suffer from other physical ailments,
whereas Plaintiff here suffers from mental disorders, there
similarly is no indication that the limitations of occasional
migraines would prevent Plaintiff from engaging in light work any
more than any of Plaintiff’s other impairments would.
The Court finds that the ALJ did consider migraines in
assessing Plaintiff’s RFC and work ability. The Court will defer
to the ALJ’s determination on this point.
iii. Whether the ALJ failed to consider relevant testimony
by Plaintiff’s father
Plaintiff argues the ALJ failed to consider testimony by
Plaintiff’s father. [Pl. Br. at 29.] Plaintiff suggests that
Social Security Ruling (“SSR”) 06-03p “requires the adjudicator
to give proper consideration to the observations of lay persons.”
[Id.] Specifically, Plaintiff argues that Mr. Buffington
testified “to his observations of his daughter’s use of drugs on
her ability to function” and that the drugs “generally helped,
not hindered, her function,” but the ALJ “does not mention this
evidence” in his summary of Mr. Buffington’s testimony. [Id. at
31.] Plaintiff also argues that the ALJ omitted from his summary
of the testimony Mr. Buffington’s assertion that health
professionals see his daughter only when she is functioning at a
fairly good level.” [Id.]
20
On the first point, contrary to Plaintiff’s assertion, the
ALJ does mention that Plaintiff took drugs as “self-medication
for migraines,” which implies that she believed the drugs eased
her headaches or at least allowed her to cope better with them.
[R. at 26.] The ALJ did not overlook this testimony. On the
second point, it seems self-evident that doctors only see
patients when they are at least able to leave the house for a
session. If, for example, a patient who occasionally suffers from
an inability to get out of bed, and describes these symptoms to a
medical professional while not bedridden, it is again selfevident that the treating physician did not see the patient and
his or her lowest functionality. Failure of the ALJ to state
explicitly what seems an obvious truth about treatment of
individuals with severe mental disorders does not constitute
grounds for remand.
Plaintiff argues that SSR 06-03p requires the ALJ to explain
why he chose to discredit the testimony from Plaintiff’s father.
[Pl. Br. at 31.] Under that ruling, Mr. Buffington would qualify
as an “other source,” meaning a non-medical source whose
relationship with the plaintiff is not based on a “professional”
relationship. See SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9,
2006) (defining “medical source” and “other sources”). The ruling
states:
. . . the adjudicator generally should explain the
weight given to opinions from these ‘other sources,’ or
21
otherwise ensure that the discussion of the evidence in
the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the
outcome of the case. In addition, when an adjudicator
determines that an opinion from such a source is
entitled to greater weight than a medical opinion from
a treating source, the adjudicator must explain the
reasons . . . .
Id. at *6.
In this case, the ALJ did not explicitly state that he found
Mr. Buffington’s testimony not credible, but he did state that he
afforded great weight to the medical exhibits. [R. at 27 (“Great
weight is accorded the medical opinions . . . .”); R. at 28 (“I
give great weight to Dr. Shore’s treatment records and to the
state agency’s consultants assessments”).] The ALJ clearly based
his reasoning and decision primarily on the medical exhibits,
which he found to be more credible and persuasive than other
testimony.
In addition, the cited portions of Mr. Buffington’s
testimony are cumulative of Plaintiff’s testimony, because she
described her self-medication for migraines,2 and other symptoms
and experiences that may or not be contained within the medical
exhibits. [See e.g., R. at 42-55 (describing all symptoms and
difficulties Plaintiff experiences).] The ALJ explicitly found
her “statements concerning the intensity, persistence and
2
See R. at 49-51 (describing drug treatment of migraines,
as well as the intensity and frequency of migraines).
22
limiting effects of these symptoms . . . not credible” to the
extent that they were inconsistent with the RFC. [R. at 28.] SSR
06-03p requires the ALJ to explain his reasoning for placing
greater weight on testimony by “other sources” than on testimony
by medical opinions, but such is not the case here. The ruling
also states that the “adjudicator generally should explain the
weight given to opinions” from other sources, “when such opinions
may have an effect on the outcome of the case.” SSR 06-03p, 2006
WL 2329939, at *6. Because Mr. Buffington’s testimony is largely
cumulative of Plaintiff’s own testimony, which the ALJ expressly
found not credible, Mr. Buffington’s opinions do not have a
significant effect of the outcome of the case. Although the ALJ
could have been more meticulous in assessing each witness’s
testimony and explaining reasons for each determination of
weight, the failure to do so in this case is not grounds for
remand.3
iv. Whether the ALJ erred in failing to call a vocational
expert when evaluating Plaintiff’s ability to work
3
Even if this omission were in error, remand is not
warranted under the harmless error doctrine. See Butterfield v.
Astrue, No. 06-0603, 2011 WL 1740121, at *6 (E.D. Pa. May 5,
2011) (finding harmless error when an ALJ examined medical
evidence and weighed that evidence against lay testimony, and
stating that “courts have found that an ALJ’s failure to address
lay opinion testimony, although technically in violation of
applicable legal standards, did not require remand since the
testimony would not have changed the outcome of the case”).
23
Plaintiff argues that the ALJ erred by (1) not calling a
vocational expert to testify on the effect of non-exertional
limits on Plaintiff’s ability to do work, and (2) failing to
provide notice of an intention to take administrative notice that
Plaintiff’s non-exertional limitations did not significantly
erode her occupational base and provide her the opportunity to
respond. [Pl. Br. at 28-29.] Plaintiff argues this error violates
the holding in Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000) and
the Social Security Acquiescence Ruling (“SSAR”) 01-1(3), 2011 WL
65745 (Jan. 25, 2001), adopting the Sykes approach for Plaintiffs
in the Third Circuit.4 [Pl. Br. at 27.] Plaintiff asserts that
the ALJ did not call a vocational expert, did not provide
Plaintiff with notice, and did not rely upon evidence from the
Dictionary of Occupational Titles or a learned treatise. [Id. at
28.] Plaintiff argues that the ALJ impermissibly based his
decision solely on the grid rule in 20 C.F.R. Pt. 404, Subpt. P,
Appx. 2. [Id.]
The Commissioner responds that the ALJ relied on SSR 85-15,
in making his determination, a practice consistent with Sykes and
SSAR 01-1(3). [Def. Opp’n at 8.] The Commissioner concludes that
the ALJ properly found that Plaintiff was capable of performing
4
Plaintiff mistakenly refers to this ruling as SSAR 0103(3), rather than SSAR 01-1(3).
24
unskilled light work and thus was entitled to rely on the
medical-vocational guidelines. [Id. at 9.]
In the Third Circuit, an ALJ considering an application from
a Plaintiff with mental impairments must either (1) call a
vocational expert, (2) provide notice to Plaintiff so that she
could call her own vocational expert, or (3) rely on an SSR and
explain how “Plaintiff’s specific limitations relate to the SSRs
relied upon.” Fisher v. Astrue, No. 11-1634, 2012 WL 983691, at
*7 (D.N.J. Mar. 21, 2012); see also Allen v. Barnhart, 417 F.3d
396, 407 (3d Cir. 2005) (holding that if the ALJ relies on an
SSR, “it must be crystal-clear that the SSR is probative as to
the way in which the nonexertional limitations impact the ability
to work, and thus, the occupational base” and “if the ALJ plans
to rely on an SSR rather than make an individualized
determination based on the testimony of a vocational expert, the
ALJ ought to give the claimant notice of this”); Meyler v. Comm’r
of Soc. Sec., 238 Fed. Appx. 884, 890-91 (3d Cir. 2007) (vacating
the ALJ’s decision and remanding because the ALJ did not explain
how the plaintiff’s “mental impairments relate to the categories
or examples in SSR 85-15, or to any aspect of SSR 83-10").
In this case, the ALJ concluded that there would be a
significant number of jobs that Plaintiff could perform with her
limitations. [R. at 29.] Using boilerplate language, the ALJ
25
cited four SSRs in the course of stating how to assess
Plaintiff’s ability to work:
If the claimant can perform all or substantially all of
the exertional demands at a given level of exertion,
the medical-vocational rules direct a conclusion of
either ‘disabled’ or ‘not disabled’ depending upon the
claimant’s specific vocational profile (SSR 83-11).
When the claimant cannot perform substantially all of
the exertional demands of work at a given level of
exertion and/or has nonexertional limitations, the
medical-vocational rules are used as a framework for
decision-making unless there is a rule that directs a
conclusion of ‘disabled’ without considering the
additional exertional and/or nonexertional limitations
(SSRs 83-12 and 83-14). If the claimant has solely
nonexertional limitations, section 204.00 in the
Medical-Vocational Guidelines provides a framework for
decision-making (SSR 85-15).
[Id.] The ALJ’s analysis includes only three sentences and does
not include further discussion of, or references to, any SSRs:
If the claimant stopped the substance abuse, the
claimant would not have the residual functional
capacity to perform the full range of light work.
However, the additional limitations that would remain
have little or no effect on the occupational base of
unskilled light work. Considering this residual
functional capacity, and the claimant’s age, education
and work experience, a finding of ‘not disabled’ is
therefore appropriate under the framework of 202.20.
[Id.]
The ALJ’s determination on this last point is incomplete. It
is undisputed that the ALJ did not call a vocational expert and
did not provide Plaintiff with notice that would give her the
opportunity to call her own vocational expert. Furthermore, it is
not clear that the ALJ based his actual analysis on any of the
SSRs cited, despite the boilerplate references. Even if he did,
26
the ALJ did not explain how Plaintiff’s “mental impairments
relate to the categories or examples” in the SSRs. Meyler, 238
Fed. Appx. at 890. This section of the ALJ’s decision includes
only conclusions; there is no analysis or reasoning aside from a
reference to the framework of Rule 202.20 in 20 C.F.R. Pt. 404,
Subpt. P, Appx. 2, and that analysis does not meet the
requirements of Sykes and SSAR 01-1(3). Thus, the Court finds
that the ALJ’s conclusion that Plaintiff’s non-exertional
limitations, principally her mental illness and migraine
headaches, did not significantly erode her occupational base is
not supported by substantial evidence. Accord Fisher, 2012 WL
983691, at *7 (vacating and remanding a Social Security appeal to
the ALJ, who did not explain how Plaintiff’s mental impairments
related to the categories or examples in the SSRs).
The Court will vacate and remand the matter to allow the ALJ
to develop the evidentiary record and thereafter reconsider how
Plaintiff’s specific limitations affect her ability to perform
unskilled work in a job that constitutes substantial gainful
employment, i.e., in a job that exists in substantial numbers in
the national economy.
IV.
CONCLUSION
For the reasons stated above, this Court finds that the ALJ
erred at the fifth step of the regulatory analysis. The Court
will vacate the ALJ’s determination and remand the case for
27
further consideration consistent with this decision. The
accompanying Order will be entered.
March 4, 2013
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
28
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