SALMELA v. ASTRUE

Filing 20

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 4/30/2015. 4/30/2015 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD CLIFFORD SALMELA,
Plaintiff,
v.

:
:
:
:
CAROLYN COLVIN,
:
Acting Commissioner of Social Security, :
:
Defendant. 1

CIVIL ACTION
NO. 13-5369

MEMORANDUM
PRATTER, J.
I.

APRIL 30, 2015

INTRODUCTION
Richard Clifford Salmela brings this action pursuant to 42 U.S.C. § 1383(c)(3), which

incorporates by reference 42 U.S.C. § 405(g), seeking review of the final determination of the
Commissioner of Social Security (“Commissioner”) denying his application for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”). After independent
consideration of the Administrative Record, submitted pleadings, U.S. Magistrate Judge Henry
Perkin’s Report and Recommendations, Mr. Salmela’s Objections thereto, and the Commissioner’s
Response, the Court approves and adopts the Report and Recommendations in part and denies it in
part. The Court grants in part and denies in part Mr. Salmela’s request for review, based upon the
Administrative Law Judge’s failure to present the impartial vocation expert with a hypothetical
question that completely presented Mr. Salmela’s limitations, and the Court remands to the
Commissioner for further proceedings.

1

On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social Security. Under
Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin should be substituted for Michael J. Astrue as the
defendant in this suit.
1

II.

BACKGROUND
Mr. Salmela, born on March 21, 1969, was 40 years old when he protectively filed his

applications for DIB and SSI. He has a high school education and completed two years at Temple
University. His past relevant work experience includes working as a service order dispatcher and a
painter. At the time of the hearing before the Administrative Law Judge (“ALJ”) in this case, Mr.
Salmela was divorced and living with his friend’s sister and her daughter.
Mr. Salmela filed applications for DIB and SSI on October 30, 2009, alleging that he has
been disabled since September 5, 2007, as a result of herniated discs, chronic low back pain,
depression, bipolar disorder, anxiety, and high blood pressure. His date last insured is December
31, 2007; therefore, to be eligible for DIB benefits, Mr. Salmela had the burden to prove that he
became disabled on or before December 31, 2007.
Mr. Salmela’s claim was denied at the initial review stage on July 15, 2010. He filed a
timely request for a hearing in front of an ALJ. Pursuant to that request, a hearing was held on
July 31, 2011, at which Mr. Salmela, accompanied by counsel, appeared and testified. An
impartial vocational expert William Slaven also testified.
On November 23, 2011, the ALJ issued a decision unfavorable to Mr. Salmela. According
to the ALJ, Mr. Salmela had the following severe impairments: chronic low back pain syndrome,
obesity, depression, bipolar disorder, anxiety disorder, and substance abuse opioid dependence
maintained on agonist therapy. She also found that he had moderate limitations in social
functioning. Nonetheless, based on testimony from vocational expert William Slaven, she found
that Mr. Salmela was capable of performing a significant number of jobs in the regional and
national economies.

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Mr. Salmela timely requested review of the ALJ’s decision. The Appeals Council denied
his claim on July 15, 2013, and on September 16, 2013, Mr. Salmela filed a Complaint seeking
review in this Court. Pursuant to Local Rule of Civil Procedure 72.1 and 28 U.S.C. §
636(b)(1)(B), the matter was referred to Magistrate Judge Perkin for a Report and
Recommendations. Magistrate Judge Perkin issued his Report and Recommendations,
recommending the denial of Mr. Salmela’s request for review and the entry of judgment in favor of
the Commissioner.
Mr. Salmela timely filed Objections to the Report and Recommendations, and the
Commissioner responded to those Objections.
III.

STANDARD OF REVIEW
When a party makes a timely and specific objection to a portion of a magistrate judge’s

Report and Recommendations, the district court applies a de novo review to the issues raised on
objection. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The
court may accept, reject, or modify, in whole or in part, the findings or recommendations of the
magistrate judge. Id.
However, the district court may review the ALJ’s final decision only in order to determine
“whether that decision is supported by substantial evidence.” Hartranft v. Apfel, 181 F.3d 358,
360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)). Stated differently, the court “is bound by the
ALJ’s findings of fact if they are supported by substantial evidence on the record.” Plummber v.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999). “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.’” Hartranft, 181 F.3d at 360 (quoting Pierce v.
Underwood, 487 U.S. 552 (1988)). The court may not “weigh the evidence,” Williams v. Sullivan,
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970 F.2d 1178, 1183 (3d Cir. 1992), and “will not set the Commissioner’s decision aside if it is
supported by substantial evidence, even if [the court] would have decided the factual inquiry
differently,” Hartranft, 181 F.3d at 360.
An ALJ’s decision must present sufficient explanation of his or her final determination to
provide a reviewing court with the benefit of the factual basis underlying the ultimate disability
finding. Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981) (citing S.E.C. v. Chenery Corp.,
318 U.S. 80, 94 (1943)). While the ALJ need only discuss the most pertinent, relevant evidence
bearing upon a claimant’s disability status, the ALJ must provide sufficient discussion to allow the
court to determine whether any rejection of potentially significant, probative evidence was proper.
Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 203-04 (3d Cir. 2008) (citing Burnett v. Comm’r of
Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000); Cotter, 642 F.2d at 706).
A claimant bears the burden to show disability because he or she is unable 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). Under the
regulations implementing the Act, the Commissioner uses a five-step sequential process to
determine whether a person is “disabled.” 2 The claimant satisfies the burden of proving disability
by showing an inability to return to his past relevant work. Rutherford v. Barnhart, 399 F.3d 546,
551 (3d Cir. 2005). Once the claimant makes this showing, the burden shifts to the Commissioner
to show that, given the claimant’s age, education, and work experience, the claimant has the ability
2

This process requires the Commissioner to consider, in sequence, whether a claimant: (1) is engaged in
substantial gainful activity; (2) has a severe impairment or severe combination of impairments; (3) has an
impairment that meets or medically equals the requirements of a listed impairment; (4) has a residual
functional capacity to perform the claimant’s past relevant work; and (5) if not, whether the claimant is able
to perform other work, in view of his age, education, and work experience. 20 C.F.R. § 416.920.
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to perform specific jobs existing in the economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v); see Rutherford, 399 F.3d at 551.
IV.

DISCUSSION
Mr. Salmela raises three objections to the Report and Recommendations. First, Mr.

Salmela argues that Magistrate Judge Perkin erred when he concluded it was harmless error for the
ALJ to present the vocational expert with a hypothetical question that did not reflect all of Mr.
Salmela’s impairments and then to rely on the expert’s testimony in concluding that Mr. Salmela
could perform other jobs existing in sufficient numbers in the economy. His next two objections to
the Report and Recommendations relate to the ALJ’s treatment of the opinions of Drs. Naseef and
Popowich. Each of these objections will be discussed in greater detail below.
A. Hypothetical Question for Vocational Expert
Although the ALJ noted that Mr. Salmela had moderate difficulties in social functioning,
her description of his residual functional capacity does not speak to any limitations in that area.
Thus, Mr. Salmela argues, the ALJ erred when she used that same description of his residual
functional capacity in posing a hypothetical question for the vocational expert and then when she
relied upon the vocational expert’s assessment to find that there were jobs in significant numbers
in the regional and national economies that he could perform. In the Report and
Recommendations in this case, Magistrate Judge Perkin assumed that the ALJ should have
included a finding of moderate limitations in social functioning in her hypothetical, but found that
the ALJ’s error was harmless. After looking at the Dictionary of Occupational Titles (“DOT”) and
examining the job descriptions for the positions identified by the vocational expert in response to
the ALJ’s flawed hypothetical, Magistrate Judge Perkin concluded that at least two of those jobs
did not require significant social interaction. Specifically, the Report and Recommendations states
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that according to the DOT, in the category of “Taking Instructions – Helping,” the DOT’s
descriptions for the jobs of mail clerk and routing clerk/clerical state that the jobs’ requirements
are “not significant,” and in the category of talking for those two positions, the DOT specifies,
“Not present—activity or condition does not exist.” Finally, the positions have the lowest possible
designation for the category of “People,” meaning that the job requires a worker to “Attend[] to the
work assignment instructions or orders of supervisor.” Therefore, Magistrate Judge Perkin found,
the vocational expert’s response to the hypothetical would be the same, even with the addition of
moderate limitations in social functioning to the list of impairments, and, therefore, any error in
failing to provide a complete hypothetical was harmless.
In questioning a vocational expert, the Third Circuit has held “in the clearest of terms” that
a hypothetical question must include all of a claimant’s impairments that are supported by the
record. Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004). If the hypothetical does not
include all of the claimant’s substantiated impairments, “the question is deficient and the expert’s
answer to it cannot be considered substantial evidence.” Id. Therefore, courts in this Circuit have
repeatedly found that a failure to include limitations in mental functioning in a hypothetical
question posed to a vocational expert calls for remand. See, e.g., Decker v. Colvin, Civil Action
No. 14-428, 2015 WL 106589, at *4-6 (W.D. Pa. Jan. 7, 2015) (remanding because the failure of
the ALJ to include moderate limitations in social functioning in the hypothetical question posed to
the vocational expert rendered the question “‘deficient,’” such that it could not “‘be considered
substantial evidence’” and was not harmless error) (quoting Chrupcala v. Heckler, 829 F.2d 1269,
1276 (3d Cir. 1987)); Pounds v. Colvin, Civil Action No. 13-440, 2014 WL 3845728, at *4-6
(W.D. Pa. Aug. 4, 2014) (remanding and holding that including a limitation on plaintiff’s
interaction with the general public was insufficient to account for moderate limitations in social
6

functioning); Seagraves v. Colvin, CA No. 13-718, 2014 WL 657549, at *2 (W.D. Pa. Feb. 20,
2014) (remanding for the ALJ to either explain the omission of plaintiff’s moderate limitations in
social functioning from the description of plaintiff’s residual functional capacity/hypothetical
question or to obtain vocational expert testimony in response to a complete and accurate
hypothetical); Debias v. Astrue, Civil Action No. 11-3545, 2012 WL 2120451, at *5-6 (E.D. Pa.
June 12, 2012) (finding the vocational expert’s testimony “inherently flawed” because of a failure
to include moderate limitations in social functioning and remanding “so the ALJ can provide an
accurate hypothetical that includes Plaintiff’s moderate social function impairment”); Lam v.
Astrue, Civil Action No. 09-4331, 2011 WL 1884006, at *14 (E.D. Pa. Mar. 31, 2011) (“Until the
ALJ forecloses the possibility that the VE could have changed his testimony if the ALJ had
included limitations pertinent to the ALJ’s own finding of ‘moderate’ limitations in social
functioning, the VE’s answer to the hypothetical as posed cannot be said to constitute substantial
evidence upon which the ALJ can properly rely.”).
Here, the ALJ clearly found that Mr. Salmela had moderate limitations in social
functioning, but failed to include those limitations in her description of Mr. Salmela’s residual
functional capacity or in her hypothetical question to the vocational expert. Because the ALJ did
not explain her failure to include Mr. Salmela’s moderate limitations in social functioning at these
later stages in the analysis, the Court may not speculate now as to her potential reasons for doing
so. Thus, given that it is impossible to tell whether the omission was intentional, the Court must
turn to the more difficult question of whether the omission, intentional or not, was harmless.
Magistrate Judge Perkin’s conclusion that any error was harmless has some logical appeal.
However, as Mr. Salmela has pointed out, the DOT descriptions do not shed light on all possible
types of social interaction involved in the jobs highlighted by the vocational expert. “Taking
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Instructions – Helping” is a fairly narrow area of social interaction, and it does not necessarily
follow that insignificant requirements in that narrow area translate into insignificant requirements
in all areas of social functioning. Even a low designation in the category of “People” does not
provide much detail as to the level of interaction with coworkers and supervisors required for the
jobs. These details, however, could be provided by a vocational expert presented with an
appropriately-detailed hypothetical question. Thus, the case will be remanded to allow the ALJ to
either explain why Mr. Salmela’s moderate limitations in social functioning were excluded from
the description of his residual functional capacity or to present a vocational expert with a complete
and accurate hypothetical.
B. Dr. Naseef
Mr. Salmela also objects to Magistrate Judge Perkin’s finding that the ALJ properly
considered Dr. Naseef’s findings. However, the Report and Recommendations thoroughly
examined the ALJ’s reasoning in according Dr. Naseef’s report partial weight and concluded that
the ALJ’s conclusions were based on substantial evidence. For instance, as noted by Magistrate
Judge Perkin, the ALJ specifically discussed Dr. Naseef’s finding that Mr. Salmela had “marked”
limitations in his ability to respond appropriately to work pressures and poor concentration, and
contrasted those findings with other evidence in the record, including observations in Dr. Naseef’s
own report, such as that Mr. Salmela’s memory processes were intact and that there was no
evidence of organic impairment. The ALJ also discounted Mr. Salmela’s subjective complaints,
which appear to be the only source Dr. Naseef considered in concluding that Mr. Salmela had poor
concentration. As to Dr. Naseef’s assignment of a Global Assessment of Functioning (“GAF”)
score of 50, the ALJ acknowledged that score, and then fully explained her interpretation of Mr.
Salmela’s varying GAF scores by noting that, “[a]lthough [Mr. Salmela’s] GAF scores have
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sometimes been reported as low as 40-45, with treatment and general compliance, the claimant’s
GAF is usually 60 indicating only mild symptoms.” Despite Mr. Salmela’s protests to the
contrary, Dr. Naseef’s GAF score is implicitly included in that discussion. Moreover, “a GAF
score of 50 or less is not dispositive on the issue of mental disability as GAF scores do ‘not have a
direct correlation to the severity requirements of the Social Security mental disorder listings.’”
Butler v. Astrue, No. 09-3140, 2010 WL 1633395, at *3 (E.D. Pa. Apr. 22, 2010) (quoting Gilroy
v. Astrue, 351 F. App’x. 714, 715 (3d Cir. 2009)).
For the same reasons expressed in the Report and Recommendation, this Court will
overrule Mr. Salmela’s objections to Magistrate Judge Perkin’s assessment of the ALJ’s treatment
of Dr. Naseef’s report.
C. Dr. Popowich
Mr. Salmela also objects to the Report and Recommendations’ analysis of the ALJ’s
treatment of treating physician Dr. Popowich’s opinions. He argues that Dr. Popowich’s opinions
were supported by objective evidence and that therefore, even though he was not an orthopedist,
his assessment of Mr. Salmela’s physical limitations was entitled to great weight. It is true that
treating physician opinions are generally accorded great weight. See Morales v. Apfel, 225 F.3d
310 (3d Cir. 2000). In this case, however, the ALJ thoroughly discussed Dr. Popowich’s opinions
and explained her reasoning in assigning them minimal weight in the context of the whole record.
Once again, the ALJ’s assessment of Mr. Salmela’s credibility, which has not been challenged
here, clearly played a role in the evaluation of Dr. Popowich’s opinions, to the extent they were
based on Mr. Salmela’s subjective complaints during his visits with Dr. Popowich. Furthermore,
the ALJ properly observed that Mr. Salmela’s own description of his daily activities conflicted
with Dr. Popowich’s opinions regarding Mr. Salmela’s physical limitations.
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For the same reasons expressed in the Report and Recommendation, this Court will
overrule Mr. Salmela’s objections to Magistrate Judge Perkin’s assessment of the ALJ’s treatment
of Dr. Popowich’s report.
V.

CONCLUSION
For the foregoing reasons, the Court approves and adopts the Report and Recommendations

in part and denies it in part. An appropriate Order follows.

BY THE COURT:

S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE

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