WOOTEN v. ASTRUE

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 12/17/2012. 12/18/2012 ENTERED AND COPIES E-MAILED. (ems)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM WOOTEN

CIVIL ACTION

v.
DEC 1 7 2012

MICHAEL ASTRUE
Commissioner of
Social Security

NO. 11-7592

MEMORANDUM OPINION

Savage, J.

December 17, 2012

In this social security case, we address whether an Administrative Law Judge
("ALJ") must consider and discuss the bases for a prior disability award when ruling on
a claimant's application for benefits made after his benefits had been terminated
because he had been incarcerated. We hold that although the prior award of disability
benefits is not dispositive, the records that supported that determination are relevant in
determining current eligibility for benefits. Therefore, in this case, because the ALJ did
not obtain and consider the prior determination and its bases, we shall remand for
purposes of developing the record by obtaining and evaluating the evidence that
supported the prior disability determination.
William Wooten filed a disability insurance claim on June 6, 2008, claiming a
disability onset date of May 1, 1998.

He had been awarded Supplemental Security

Income ("SSI") benefits in 2002 on the basis of his multiple mental impairments. His

benefits terminated on April 28, 2005, by operation of law, when he was incarcerated. 1
Upon his release from jail, he reapplied for benefits, alleging disability based on his
mental impairments and debilitating pain from a cervical spine fracture he sustained in a
January 19, 2005 car accident. 2 The claim was initially denied and Wooten filed a
request for a hearing.
Wooten represented himself at a hearing held before an ALJ on May 5, 2010.
He and a vocational expert testified at the hearing which lasted twenty-one minutes.
The ALJ had Wooten's prison medical records, diagnostic test results and
treatment records related to his 2005 spinal injury, and mental health records for the
period after his release from jail. The treatment records from Grazer Chester Medical
Center/Community Hospital, covering the period June 28, 2008 to November 2, 2009,
show that Wooten complained of extreme pain and headaches at each of his monthly
visits. 3 Those records also recite that he attended therapy, saw a psychiatrist, reported
feelings of depression; was not taking anti-psychotic medications, and denied
hallucinations or suicidal thoughts. /d.

He was proscribed Prozac in April 2010, one

month prior to the ALJ hearing, "[d]ue to a recent exacerbation of psychiatric symptoms
(hopelessness, anger, paranoia and poor energy) .... "4

1

SSI payments to an individual who is incarcerated will be suspended, beginning with the first full
month in which the individual is incarcerated. See 20 C.F.R. § 416.1325(a). If an individual's benefits are
suspended for twelve or more consecutive months, the Commissioner terminates the individual's benefits.
See 20 C.F.R. § 416.1335.
2

(R. 199-205).

3

(R. 305-334).

4

(R. 359).

2

The ALJ also had two psychological assessment reports, dated September 26,
2008 and October 15, 2008, that reached different conclusions regarding Wooten's
mental impairments. The author of the September 26, 2008 report personally examined
Wooten; the author of the October 15, 2008 report did not. The former concluded that
Wooten had marked and extreme limitations as a result of his mental impairments. 5
The latter, a state agency doctor who only reviewed the records and did not personally
examine Wooten, found no marked or extreme limitations. 6

A non-physician state

agency adjudicator, addressing only the cervical spine component, made a physical
Residual Functional Capacity (RFC) assessment.

Without considering treating or

examining sources, the adjudicator found Wooten capable of light work. 7
Finally, the ALJ had function reports filled out by Wooten 8 and his aunt, 9 with
whom he resides.

These reports detail Wooten's functional limitations in his daily

activities. At the hearing, the ALJ appropriately asked Wooten about medication he
took for his mental health, what he does on a daily basis, his social activities, and his
headaches. 10
The ALJ correctly found Wooten had not engaged in any substantial gainful
activity, had not worked for fifteen years, and suffers from several severe impairments,
including back and neck disorders, migraines, schizophrenia and paranoia.

5

(R. 212-220).

6

(R. 221-224).

7

(R. 206-211).

8

(R. 116-128).

9

(R. 129-139).

10

(R. 45-57).

3

She

determined that Wooten's physical and mental impairments did not equal a listed
impairment resulting in a finding of per se disabled. In determining Wooten's RFC, the
ALJ concluded he had no disabling mental limitations. She discounted the September
26, 2008 opinions of the consultative psychologist who had personally evaluated
Wooten because they were inconsistent with the lack of mental health treatment in
prison, 11 his denial of symptoms at his August 2008 parole psychological evaluation, 12
the parole board evaluator's assessment of Wooten's minimal impairment in social or
occupational functioning, 13 and the intermittent post-incarceration therapy treatment
history. 14 Instead, she relied on the state agency psychological consultant's opinion
because she felt it was supported by "specific reasons for her opinions about the
claimant's limitations showing they were well grounded in the evidence of record." 15
Finding Wooten's testimony contradictory, the ALJ discredited his assertions about his
social abilities.

Finally, the ALJ, stating that no doctor had found Wooten physically

incapable of work, adopted the non-physician state agency adjudicator's finding that
Wooten was able to perform light work.

She cited Wooten's conservative pain

treatment plan in discrediting his subjective complaints of disabling pain and the
objective medical evidence showing normal gait and motor strength as supportive of the
RFC.

11

(R. 177-193).

12

(R. 313-321).

13

(R. 191-193).

14

(R. 305-334).

15

(R. 28).

4

The ALJ found Wooten capable of light work. She concluded that jobs matching
his education, age and mental capacity were available in the economy.

Thus, she

denied his claim.
Wooten requests review of the Administrative Law Judge's ("ALJ") decision to
deny his benefits. He asserts two grounds for remand of the ALJ's decision: (1) the ALJ
failed to develop the record with regards to his mental impairments by not obtaining and
evaluating the record from his first disability claim; and (2) the ALJ's finding that he is
capable of performing light work is not substantially supported by the record.
Standard of Review

On judicial review, we determine whether the Commissioner's decision is
supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence is '"more than a mere scintilla;'
it means 'such relevant evidence as a reasonable mind might accept as adequate."
Thomas v. Comm'r of Soc. Sec. Admin., 625 F.3d 798, 800 (3d Cir. 2010) (quoting
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). The substantial evidence test "is
not merely a quantitative exercise." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.
1983) (emphasis removed).
To facilitate meaningful judicial review, the ALJ must explain clearly and fully the
basis for her decision. Barren Creek Coal Co. v. Witmer, 111 F.3d 352, 356 (3d Cir.
1997) (citing Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981), reh'g denied, 650
F.2d 481 (3d Cir. 1981)).

The ALJ must discuss what evidence supports her

determination and what she rejected, and state her reasons for accepting some
evidence while rejecting other evidence. Cotter, 642 F.2d at 705.

5

Discussion

Disability benefit claim proceedings "are inquisitorial rather than adversarial."
Sims v. Apfel, 530 U.S. 103, 110-11 (2000). The ALJ has an affirmative duty to develop
the record. /d. at 111. Failure to do so requires remand. Remand is necessary where
"relevant, probative and available evidence was not explicitly weighed in arriving at a
decision on the plaintiffs claim for disability benefits." Dobrowolsky v. Califano, 606
F.2d 403, 407 (3rd Cir. 1979) (citation omitted).
A developed record provides substantial evidence to support the ALJ's findings.
Substantial evidence is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."
2003) (citation omitted).

Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.

Relevant evidence includes medical records, the claimant's

testimony about his pain and limitations, medical testimony, vocational expert testimony,
and the testimony of any other person necessary to interpret the medical records and
the claimant's subjective complaints. 20 C.F.R. §§ 416.912 and 416.913.
The ALJ's duty to develop the record is heightened where a claimant acts pro se.
"An ALJ owes a duty to a pro se claimant to help him or her develop the administrative
record.

'When a claimant appears at a hearing without counsel, the ALJ must

scrupulously and conscientiously probe into, inquire of, and explore for all the relevant
facts."' Reefer, 326 F.3d at 380 (quoting Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.
1985)) (internal citations omitted); Dobrowolsky, 606 F.2d at 407 (noting that an ALJ
must "assume a more active role when the claimant is unrepresented"). It is even more
compelling when the pro se claimant has a mental impairment.
Health, Ed. and Welfare, 612 F.2d 594, 598 (1st Cir. 1980).

6

Currier v. Sec'y of

We now consider whether the ALJ adequately developed the record in light of
Wooten's pro se status and prior history of mental impairments. In Reefer, the Third
Circuit reversed the District Court because the ALJ did not develop the pro se claimant's
record by requesting additional medical records despite the lack of information to
evaluate the effect of the claimant's injury.

Reefer, 326 F.3d at 380.

In Mimms v.

Heckler, the case was remanded because the ALJ had not obtained the pro se
claimant's prior disability insurance records, which the court considered "highly relevant"
because the first disability claim related directly to the second disability claim. 750 F.2d
180, 185 (2nd Cir. 1984).
Evidence supporting a valid prior disability claim is relevant to a later claim. How
the claimant's condition changed, if at all, is relevant to assessing his current condition.
As stated in 20 C.F.R. § 416.920a(c)(1), concerning the evaluation of mental
impairments:
Assessment of functional limitations is a complex and highly individualized
process that requires us to consider multiple issues and all relevant
evidence to obtain a longitudinal picture of your overall degree of
functional limitation. We will consider all relevant and available clinical
signs and laboratory findings, the effects of your symptoms, and how your
functioning may be affected by factors including, but not limited to, chronic
mental disorders, structured settings, medication, and other treatment.
20 C.F.R. 416.920a(c)(1) (emphasis added).
The inquiry is not limited to the preceding twelve-month period. The regulations
require the ALJ to consider all evidence available in the individual's case record. The
ALJ must:
develop a complete medical history of at least the preceding twelve
months for any case in which a determination is made that the individual is
not under a disability. In making any determination the Commissioner of
Social Security shall make every reasonable effort to obtain from the
7

individual's treating physician (or other treating health care provider) all
medical evidence . . . necessary in order to properly make such
determination ....
Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 297 (3d Cir. 2012) (quoting 42 U.S.C. §

423(d)(5)(B)) (emphasis added).

Twelve months is the minimum, not the maximum,

period that must be considered. If there is "reason to believe that development of an
earlier period is necessary," the Commissioner must obtain and consider records
covering that period. 20 C.F.R. §§ 404.1512(d), 416.912(d).
When there is a perceived gap in the historical record, the ALJ has an obligation
to obtain the missing information. Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)
(citing Perez v. Chafer, 77 F.3d 41, 47 (2d Cir. 1996); see also Rosa v. Callahan, 168
F.3d 72, 79 (2d Cir. 1999) ("[W]here there are deficiencies in the record, an ALJ is
under an affirmative obligation to develop a claimant's medical history even when the
claimant is represented by counsel .... ")(internal quotation omitted).
In the case of a mental impairment, a lapse in treatment or failure to treat alone is
not a basis for finding that the claimant is not disabled. The ALJ must consider why the
claimant failed to treat, or sporadically treated, for the mental condition. In Newell v.
Commissioner of Social Security Administration, the Third Circuit noted that under SSR

96-7p:
[T]he adjudicator must not draw any inferences about an individual's symptoms
and their functional effects from a failure to seek or pursue regular medical
treatment without first considering any explanations that the individual may
provide, or other information in the case record, that may explain infrequent or
irregular medical visits or failure to seek medical treatment.
347 F.3d 547 (3d Cir. 2003) (quoting SSR 96-7p, 1996 SSR LEXIS 4, at *22, 1996 WL
374186, at *5-6 (July 2, 1996)).

8

Here, acknowledging that Wooten had a history of mental disorders, the ALJ did
not assist Wooten in obtaining medical records from his earlier disability claim and
providing medical testimony that could have explained what, if anything, changed with
respect to his mental impairments. Although the record is not completely silent on his
mental impairments, Wooten, like the claimant in Reefer, had made the ALJ aware of
pertinent evidence through his testimony that he had a substantiated disability claim and
had been receiving SSI disability benefits prior to his incarceration. 16 As in Mimms, the
medical records from his first disability claim are directly related to his current claim.
Accordingly, the ALJ had a duty to evaluate that evidence as it related to the evidence
before her.
The ALJ did not consider the mental health records prior to Wooten's 2005
imprisonment. She does not mention, let alone analyze, two consultative examination
reports, dated November 17, 2003 and December 9, 2003, that were in the record. 17
Opinions of examining physicians are generally given more weight than nonexamining physicians. See 20 C.F.R. § 404.1527(c)(1). 18

Nonetheless, the ALJ

dismissed the September 27, 2008 consultative examination finding disability, 19 as
having "little weight," because it was "significantly different from any of the other

16

(R. 47).

17

(R. 158-164).

18

20 C.F.R. § 404.1527(c) provides a list of factors that are considered in evaluating opinion
evidence when the opinion is not that of a treating physician, or when a treating physician's opinion is not
given controlling weight. These factors include the length of the relationship, the frequency of
examination, and the nature and extent of the treatment relationship.
19

(R. 212-220).

9

psychological evaluations in the medical evidence."20 In her analysis, she noted that
one month prior to this evaluation, Wooten denied any mental health symptoms in
therapy2 1 and his prison records do not indicate that he was treated for significant
psychological issues while incarcerated. 22 Accordingly, she gave great weight to the
findings of the state agency psychologist who only did a records review, specifically
stating that "they were grounded in the evidence of record." 23
Although an ALJ is not required to "search out all the relevant evidence which
might be available," Hess v. Sec'y of Health, Educ. & Welfare, 497 F.2d 837, 840 (3d
Cir. 1974), she must still obtain medical records from the claimant's treating sources to
fulfill her obligation to assist the prose claimant in developing the administrative record.
See Reefer, 326 F.3d at 380 (where medical records before ALJ did not refer to a stroke

that prose claimant testified she had suffered, ALJ had a duty to investigate further by
requesting additional medical records or receiving testimony from plaintiff's treating
physicians); Isaac v. Astrue, No. 08-1661, 2009 WL 1492277, at *13 (W.O. Pa. May 28,
2009) (the ALJ failed to adequately develop the record where he relied on opinions by
two consultative physicians without obtaining records from pro se claimant's mental
health care provider); Sloss v. Astrue, No. 07-344, 2008 WL 2355853, at *2 (W.O. Pa.
June 9, 2008) (the ALJ failed to satisfy his enhanced duty to develop the record and
hold a full and fair hearing by failing to seek records from the mental health care

20

(R. 28).

21

(R. 313-321).

22

(R. 177-193).

23

(R. 28).

10

provider listed by the pro se claimant in her initial paperwork, discussed by her at the
hearing, and noted in the consultative physician's report).
Under the circumstances, the ALJ should have obtained and considered the
medical records that formed the basis for the earlier finding of disability. She should
have requested these records, compared his pre- and post-incarceration treatment
records, and explained any differences or changes in his medical condition. She also
should have asked Wooten to explain any ambiguities and inconsistencies.

See

Colavito v. Apfel, 75 F. Supp. 2d 385, 389 (E.D. Pa. 1999).
The ALJ did not explore the reasons for the lapse in Wooten's mental health
treatment while incarcerated. She should have. SSR 96-7p; Newell, 347 F.3d at 547;
Nguyen v. Chafer, 100 F.3d 1462, 1465 (9th Cir. 1996) (holding that the fact that a
"claimant may be one of the millions of people who did not seek treatment for a mental
disorder until late in the day" was not a substantial reason to reject the argument that an
impairment existed).

The record does not reveal what mental health treatment was

available in prison or what Wooten's actual condition there was. There are notations in
the prison records that raise a question about his psychiatric status. According to the
records, Wooten had been demonstrating unusual behavior and depression, was
delusional, had been diagnosed with schizoaffective disorder, and was diagnosed with
non-organic psychosis. 24
The

ALJ

did

not

inquire

about Wooten's

current

treatment

and

the

inconsistencies in the records. Nonetheless, she relied on the lack of treatment and his
statements made during the hearing to discredit him.

In short, the ALJ failed to

"scrupulously and conscientiously probe into, inquire of, and explore for all the relevant
24

(R. 188-193).

11

facts." See Gold v. Sec'y of Health, Educ. and Welfare, 463 F.2d 38, 43 (2nd Cir. 1972)
(citations omitted).
The ALJ knew Wooten had previously been found disabled and his benefits had
been discontinued only because he had been incarcerated, resulting in his ineligibility
for disability benefits.

The ALJ should have considered how, if at all, his condition

changed. A comparison between his condition before and after his incarceration was
warranted.
Without the medical evidence that supported Wooten's earlier claim for benefits,
the record was not fully developed. An evaluation of the earlier medical evidence could
have a substantial effect on the credibility and disability determinations the ALJ made
regarding the conflicting medical opinions and Wooten's testimony. Therefore, we shall
remand the case for development of the record, particularly the testimony and evidence
that supported his prior claim.

12