LoRusso v. Astrue
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, this case must be remanded to the Acting Commissioner for further consideration consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 12/19/13. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:CIVIL ACTION NO. 3:12-CV-1275
CAROLYN W. COLVIN,1
Acting Commissioner of
Here we consider Plaintiff’s appeal from the Commissioner’s
denial of Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (“Act”).
The Administrative Law
Judge (“ALJ”) who originally evaluated the claim found that
Plaintiff had the residual functional capacity to perform less than
a full range of sedentary work, that jobs existed which she could
perform, and, therefore, Plaintiff was not under a disability as
defined in the Social Security Act.
(R. 16, 21-22.)
action, Plaintiff argues that the determination of the Social
Security Administration is error for three reasons: 1) the ALJ did
not consider that Plaintiff was entitled to benefits during her
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit.
No further action need be taken to continue this suit by reason of
the last sentence of § 205(g) of the Social Security Act, 42 U.S.C.
“re-entitlement period”; 2) the ALJ concluded Plaintiff’s
impairments did not meet or equal a listed impairment; and 3) the
ALJ did not properly consider and discuss Plaintiff’s impairments
in combination and the impact on her ability to work.
(Doc. 7 at
For the reasons discussed below, we conclude remand to the
Acting Commissioner is required.
On February 18, 2009, Plaintiff protectively filed an
application for Title II Disability Insurance benefits.
Plaintiff, whose date of birth is October 17, 1975, claimed
disability beginning on November 4, 2008.
listed the illnesses, injuries, or conditions that limited her
ability to work as “herniated disc in back, learning disability,
She added that she cannot bend over
without pain and could not sit or stand for long periods.
Plaintiff is married and does not have children.
Plaintiff had past work as a nurse’s aid.
The Social Security Administration denied Plaintiff’s
application by decision issued on June 19, 2009.
July 16, 2009, Plaintiff filed a timely Request for Hearing before
an Administrative Law Judge.
On September 8, 2010, ALJ
Ronald Sweeda held a hearing at which Plaintiff and a vocational
expert (“VE”) testified.
In response to the question of why she was unable to work,
Plaintiff testified “I’ve had three back surgeries in ‘09.
rods in my back.
I’ve had bone taken out of both my hips. I suffer
from terrible anxiety, depression, obsessive compulsive disorder,
The medicines I take make me extremely tired.
lay down throughout the day.”
I have to
At the time of the
hearing, Plaintiff was taking Baclofen, Celebrex and Neurontin for
She was also taking Lithium, Vistaril and Lexapro
prescribed by her psychiatrist, Ashokkumar Patel, M.D.
Plaintiff testified that she had problems with her memory, she’s
very shy and people make her extremely nervous, she does not have
friends, and she has no hobbies.
In response to the
ALJ’s question of how she spends her days, Plaintiff stated that
she visited with her sister-in-law who lives next door, her mother
comes down and takes her out for a bit, and she reads.
Following Plaintiff’s testimony, the ALJ asked the VE whether
there were jobs for a hypothetical claimant with the same age,
education and work experience as Plaintiff with the residual
functional capacity to perform light work, but which would allow a
change of position from sitting to standing at least every thirty
(30) minutes plus other limitations.
The VE identified
The ALJ then asked a similar
hypothetical but limited Plaintiff to sedentary work with the same
Again, the VE identified several positions.
When the ALJ added the restriction that the hypothetical
claimant would be off task up to twenty percent of the work day,
the VE responded there would be no jobs for such a person.
By decision of October 8, 2010, ALJ Sweeda found that
Plaintiff was not disabled within the meaning of the Social
The following findings of fact and
conclusions of law from the ALJ’s decision are relevant to
Plantiff’s claimed errors: 1) Plaintiff has severe impairments of a
“history of thoracic fusion, opiate dependence, mood disorder, and
anxiety related disorder” (R. 14); 2) Plaintiff does not have an
impairment or combination of impairments that meets or equals one
of the listed impairments (R. 15); and 3) Plaintiff has the
residual functional capacity to perform less than a full range of
sedentary work (Plaintiff is capable of lifting and carrying up to
ten pounds occasionally and two to three pounds frequently, she is
limited to occupations that permit her to change from sitting to
standing at least every thirty minutes, occupations that do not
require crawling, kneeling or climbing and no more than occasional
stooping or bending, occupations that require no exposure to
temperature or humidity extremes, vibrations, unprotected heights
or dangerous machinery, and she is limited to performing simple,
repetitive tasks in a low stress environment defined as not
involving production rate quotas)(R. 16).
As noted above, the ALJ ultimately decided that jobs exist in
the national economy that Plaintiff can perform. (R. 22.)
determined that Plaintiff had not been under a disability as
defined in the Social Security Act from November 4, 2008, through
the date of his decision, October 8, 2010.2
On or about December 11, 2010, Plaintiff filed a timely
request with the Social Security Administration Appeals Council for
In an Order dated May 11, 2012, the Appeals
Council denied Plaintiff’s Request for Review (R. 1-6), making the
ALJ’s decision the decision of the Commissioner.
Plaintiff filed this action on July 3, 2012.
filed her brief in support of the appeal on December 6, 2012.
Commissioner Astrue filed his opposition brief on
September 5, 2012.
Plaintiff did not file a reply
brief and the time for doing so has passed.
Therefore, this matter
is ripe for disposition.
A. Relevant Authority
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.3
It is necessary for the
The ALJ noted that Plaintiff remains insured through
December 31, 2013, and she must establish disability on or before
that date in order to be entitled to a period of disability and
disability insurance benefits. (R. 12.)
“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial 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 he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing 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, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
If the claimant satisfies this burden, then the Commissioner
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 that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his 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 he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
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).
A reviewing court is
“bound by the ALJ’s findings of fact if they are supported by
substantial evidence in the record.”
422, 427 (3d Cir. 1999).
Plummer v. Apfel, 186 F.3d
Substantial evidence means “more than a
It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
v. Perales, 402 U.S. 389, 401 (1971); Plummer, 186 F.3d at 427
(quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)); see
also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
Therefore, we will not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if we
would have reached different factual conclusions.
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 . . .”).
even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
Cir. 1983) (internal quotation omitted).
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.
v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
Califano, 606 F.2d 403, 406 (3d Cir. 1979).
See Dobrowolsky v.
These proceedings are
not strictly adversarial, but rather the Social Security
Administration provides an applicant with assistance to prove his
“These proceedings are extremely important to the
claimants, who are in real need in most instances and who claim not
charity but that which is rightfully due as provided for in Chapter
7, Subchapter II, of the Social Security Act.”
Hess v. Secretary
of Health, Education and Welfare, 497 F. 2d 837, 840 (3d Cir.
As such, the agency must take extra care in developing an
administrative record and in explicitly weighing all evidence.
Dobrowolsky, 606 F.2d at 406.
Further, the court in Dobrowolsky
noted “the cases demonstrate that, consistent with the legislative
purpose, courts have mandated that leniency be shown in
establishing the claimant’s disability, and that the Secretary’s
responsibility to rebut it be strictly construed.”
Finally, the Third Circuit has recognized that it is necessary
for the Secretary to analyze all evidence.
If he has not done so
and has not sufficiently explained the weight he has given to all
probative exhibits, “to say that his 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, 606 F.2d at 407.
In Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981), the Circuit
Court clarified that the ALJ must not only state the evidence
considered which supports the result but also indicate what
evidence was rejected.
“Since it is apparent that the ALJ cannot
reject 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.”
Id. at 706-07.
ALJ need not undertake an exhaustive discussion of all the
See, e.g., Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.
“There is no requirement that the ALJ discuss in its
opinion every tidbit of evidence included in the record.”
Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004).
Only where the ALJ
rejects conflicting probative evidence must he fully explain his
reasons for doing so.
See, e.g., Walker v. Comm’r of Soc. Sec., 61
F. App’x 787, 788-89 (3d Cir. 2003) (citing Kent v. Schweiker, 710
F.2d 110, 114 (3d Cir. 1983)).
Further, the ALJ does not need to
use particular language or adhere to a particular format in
conducting his analysis.
Jones v. Barnhart, 364 F.3d 501, 505 (3d
“[W]here [a reviewing court] can determine that there
is substantial evidence supporting the Commissioner’s decision, . .
the Cotter doctrine is not implicated.”
Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
Plaintiff’s Alleged Errors
As set out above, Plaintiff asserts the ALJ erred on three
bases: 1) the ALJ did not consider that Plaintiff was entitled to
benefits because she became disabled during her extended period of
eligibility, also known as the “re-entitlement period”; 2) the ALJ
concluded Plaintiff’s impairments did not meet or equal a listed
impairment; and 3) the ALJ did not properly consider and discuss
Plaintiff’s impairments in combination and the impact on her
ability to work.
(Doc. 7 at 4.)
We will address each in turn.
Extended Period of Eligibility
Plaintiff first argues that the ALJ should have considered
whether she was entitled to benefits because she became disabled
during her extended period of eligibility as set out in 20 C.F.R. §
(Doc. 7 at 5.)
We conclude the ALJ did not err on
This asserted basis for relief relates to Plaintiff’s receipt
of social security disability benefits as a result of injuries she
sustained in an automobile accident which occurred in 1999.
7 at 3.)
Plaintiff experienced a thoracic spine injury for which
she underwent surgery–-a T5-6 thoracotomy and discectomy.
Plaintiff’s claim for DIB was approved in 2001 with an onset date
of September 16, 1999, on the basis of meeting a listed impairment.
This issue does not warrant further discussion in that this
matter relates to Plaintiff’s prior claim.
that her benefits were terminated “in or about March/April of 2007"
for failure to attend a consultative examination (“CE”).
Though Plaintiff presents a statutory/regulatory framework
addressing a claimant who engages in a trial work period, she
presents no authority to support the proposition that these
provisions apply to a claimant whose benefits were terminated on an
(Doc. 7 at 5-7.)
Nor does Plaintiff present any
authority that the provisions apply to a new claim for benefits
filed over eighteen (18) months after previously awarded benefits
Absent such support, we conclude any
assertion that benefits were improperly terminated should have been
raised in a timely appeal of the 2007 termination decision.
Plaintiff asserts the ALJ erred at step three of the
evaluation process by concluding that Plaintiff’s impairments do
not meet or equal a listed impairment.
(Doc. 7 at 8.)
responds that Plaintiff did not meet her burden of showing that she
had an impairment of listing-level severity.
(Doc. 10 at 14
(citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).)
adds that Plaintiff has not identified the listed impairments and
the medical basis for her assertion that she meets or equals a
listing, but rather generally alleges that her impairments satisfy
Sections 1.04, 12.04 and 12.06.
(Doc. 10 at 14.)
remand is required for a proper analysis of whether Plaintiff’
impairments meet or equal a listed impairment.
The ALJ did not provide any analysis for his determination
that Plaintiff’s physical impairments do not meet or equal a listed
(See R. 15-16.)
Plaintiff asserts his conclusion was
error, noting first that she was previously granted benefits for
her thoracic spine injury as it was deemed severe enough to meet a
listing, presumably listing 1.04 entitled “Disorders of the Spine.”
(Doc. 7 at 9.)
Plaintiff adds that her condition worsened and she
required multiple in-patient hospitalizations and three additional
(Doc. 7 at 10.)
We conclude that, although Plaintiff
presents this issue in general terms rather than specifically
relating record citations to listing requirements, she is accurate
that the ALJ did not provide any analysis for his section 1.04
(Doc. 7 at 10.)
Plaintiff is also accurate that the ALJ’s analysis of her
mental impairments did not take into account probative evidence
supporting these impairments.
We find of particular
significance the ALJ’s failure to acknowledge that consulting
examiner Elizabeth Ciaravino, Ph. D. noted marked limitations in
several categories (R. 301) and that Plaintiff had three in-patient
hospitalizations for psychiatric and drug dependence issues.
Failure to discuss this type of probative evidence is
cause for remand.
Dobrowolsky, 606 F.2d at 407; Cotter, 642 F.2d
at 705; Walker, 61 F. App’x at 788-89.
Combination of Impairments
With her final basis for appeal, Plaintiff asserts the ALJ
erred by failing to properly consider her impairments in
combination pursuant to 20 C.F.R. §§ 404.1545 and 416.945, and it
is clear from the record that the cumulative effect of her
impairments results in her inability to perform even less than a
full range of sedentary work.
(Doc. 7 at 14-15.)
maintains that the ALJ properly considered Plaintiff’s combination
of impairments and her medication history.
(Doc. 10 at 20.)
Defendant asserts the key question is whether the ALJ incorporated
all of Plaintiff’s credibly established limitations in the residual
functional capacity and Plaintiff has offered no evidence that the
ALJ’s functional capacity assessment is incorrect.
that the ALJ did not adequately discuss Plaintiff’s impairments in
combination and their effect on Plaintiff’s ability to work.
Again we find that Plaintiff for the most part argues this
issue in generalities rather than with specific citations to
evidence of record.
(Doc. 7 at 14-15.)
However, given the
remedial nature of the Social Security Act, that the agency must
take extra care in developing an administrative record and in
explicitly weighing all evidence, and that “courts have mandated
that leniency be shown in establishing the claimant’s disability,
and that the Secretary’s responsibility to rebut it be strictly
construed,” Dobrowolsky, 606 F.2d at 406, we conclude Plaintiff’s
argument does not fail for lack of specificity.
This is so because
our review of the record shows the ALJ did not explicitly weigh
evidence tending to support disability.
In addition to the matters
discussed in the previous section of this Memorandum, including Dr.
Ciavarino’s notation of marked restrictions in some areas of
functioning, some inconsistencies in the ALJ’s RFC discussion as
well as probative evidence omitted from his analysis render the
Court unable to find that his RFC finding is based on substantial
First, we note that Plaintiff’s impairments resulted in at
least eight hospital inpatient admissions between November 2008 and
(R. 200-25, 335-43, 420-97, 499-503.)
Jenkins, III, performed three back surgeries on Plaintiff at Mt.
Sinai Medical Center in New York–-the first on March 19, 2009, the
second on April 16, 2009, and the third on October 14, 2009.
record indicates that between the second and third surgeries,
Plaintiff experienced relief from some pain but continued with
severe and worsening pain.
(See, e.g., R. 504-05, 506.)
In May of
2009, because of the nature of Plaintiff’s pain Dr. Jenkins
suspected a nonunion and arranged for placement of an external
spinal fusion stimulator.
In June of 2009, Dr. Jenkins
gave Plaintiff a prescription for a Jewett extension brace to
address her back pain.
In August of 2009, Dr. Jenkins
reported that further surgery was indicated.
October 14, 2009, surgery, Plaintiff reported compliance with her
brace and continued pain to Philip Hlavac, M.D. (R. 370.)
December 7, 2013, Dr. Hlavac noted that because Plaintiff was “in
the relatively early postop period, I would expect her to have pain
at this point both from the underlying degenerative disc disease,
the relative immobility in the brace and the surgery itself.”
Dr. Hlavac stated that Plaintiff would continue with the
brace for two weeks and then be weaned out of it over a six-week
He also noted that he would continue Plaintiff on
Vicodin and ordered a TENS unit.
While this record does not definitively determine that
Plaintiff was under a disability from before her March 19, 2009,
surgery through the October 14, 2009, surgery postop period which
Dr. Hlavec recognized to be continuing through December 2009,
because this period approaches the twelve-month requirement of the
Act and because Plaintiff was hospitalized for severe pain in
November and December of 2008, detailed discussion of this
probative evidence should have been included in the ALJ’s RFC
We recognize that on July 16, 2010, Dr. Jenkins noted
Plaintiff reported 75 percent to 85 percent improvement in her
original preoperative thoracic back pain.
given the definition of disability in the Act and the longevity of
Plaintiff’s difficulties, eventual improvement does not mean that
Plaintiff could not have satisfied the required twelve (12)
duration during her eligibility period.
See 42 U.S.C. §
This is particularly so when Plaintiff’s mental
health/substance dependence hospitalizations are combined with her
thoracic spine condition.
After being found unconscious at home,
Plaintiff was hospitalized at Mercy Hospital in Scranton,
Pennsylvania, from February 27, 2010, to March 4, 2010, when
“inpatient psych” was agreed upon and she was transferred to
Marworth Treatment Center for a dual diagnosis which included
(R. 420-21, 435.)
Plaintiff was admitted to
Marworth on March 8, 2010, and discharged on March 24, 2010.
Marworth outpatient notes dated April 15, 2010, indicate
that Plaintiff “had a dual diagnosis of anxiety and depression
which could exacerbate her chronic pain condition.”
Plaintiff was hospitalized in the mental health unit at Community
Medical Center in Scranton, Pennsylvania, from May 4, 2010, to May
In Dr. Patel’s discharge summary, he noted
that Plaintiff was admitted on a voluntary basis because of severe
depression, increasing anxiety, not sleeping, not able to contract
for safety, and thoughts of ending her life.”
Considering the timeline of Plaintiff’s surgeries (including
postoperative recovery periods and documented symptomology between
procedures) and mental health related hospital stays, it is
plausible that Plaintiff was unable to engage in any substantial
gainful activity from March 2009 through May 2010.
remand, the evidence should be reviewed in this chronological
manner with further record development as needed.
We also find the ALJ’s reliance on Dr. Prebola’s examination
and findings of February 13, 2009, problematic.
(See R. 18.)
Prebola’s notation of symptom magnification and exaggeration
tendencies, should be evaluated in the context of Plaintiff’s
surgeon’s report of February 9, 2009, where he notes severe focal
tenderness at about the level of T5-6, the MRI of the thoracic
spine demonstrating “a significant surgical defect” and other
significant changes, and new-onset baldder symptoms which he found
to be “significant and concerning.”
concluded Plaintiff would respond well to immobilization surgically
“as her pain is profoundly better wehn she is lying down, i.e., not
putting any weight on the prior surgical site” and he thus
proceeded with surgical planning.
The ALJ’s consideration of opinion evidence, particularly his
reliance on the report of Paul Taren, Ph. D., also warrants
reconsideration given the ALJ’s aforementioned failure to review
examining source Dr. Ciaravino’s notation of marked limitations
which contrast with Dr. Taren’s non-examining review.
(See R. 20.)
This is particularly significant since both reports were completed
in June 2009.
(R. 297, 303.)
Furthermore, in Dr. Taren’s
“Explanation of Findings,” he noted Plaintiff had not had any
hospitalizations because of her mental impairment.
(R. 319.) As
the evidence reviewed above shows, Plaintiff had three (3) mental
health related hospitalizations subsequent to Dr. Taren’s report
and prior to the ALJ’s decision.
The Court recognizes evidence of Plaintiff’s medication
(See, e.g. R. 369, 381-82.)
The ALJ notes this
behavior in combination with Dr. Prebola’s finding of exaggeration
While medication seeking behavior and
narcotic dependence are certainly factors to be considered, we note
that our review of the record does not reveal any finding by a
treating physician that Plaintiff’s reports of pain are not
supported by her thoracic spine condition.
Based on this brief contextual review of the record, we cannot
say the ALJ’s RFC determination is based on substantial evidence
because he failed to discuss probative evidence.
Thus, we conclude
remand is required.
For the reasons discussed above, this case must be remanded to
the Acting Commissioner for further consideration consistent with
An appropriate Order is filed simultaneously with
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: December 19, 2013
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