Risser v. Astrue

Filing 13

MEMORANDUM Our review of the administrative record reveals that the decision of the Commissioner is not supported by substantial evidence. We will, therefore, pursuant to 42 U.S.C. § 405(g) vacate the decision of the Commissioner and remand for further proceedings.An appropriate order will be entered. Signed by Honorable Richard P. Conaboy on 8/24/12. (cc, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
VONNIE MARIE RISSER,
Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

:
:
:
:
:
:
:
:
:
:
:

CIVIL NO. 4:11-CV-01173
(Judge Conaboy)

MEMORANDUM
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Vonnie Marie Risser’s claim for social security
disability insurance benefits and supplemental security income
benefits.
Disability insurance benefits are paid to an individual
if that individual is disabled and “insured,” that is, the
individual has worked long enough and paid social security taxes.
The last date that a claimant meets the requirements of being
insured is commonly referred to as the “date last insured.”

It is

undisputed that Risser meets the insured status requirements of
the Social Security Act through December 31, 2012. Tr. 12, 14 and
154.1

1. References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of his Answer on August 17,
2011.

Supplemental security income is a federal income
supplement program funded by general tax revenues (not social
security taxes).

It is designed to help aged, blind or other

disabled individuals who have little or no income.
Risser, who was born in the United States on January 30,
1975, graduated from high school in 1993 and can read, write,
speak and understand the English language and perform basic
mathematical functions. Tr. 125, 165, 172 and 178.

During her

elementary and secondary schooling, she attended regular education
classes. Tr. 172.

After graduating from high school, Risser

obtained a commercial driver’s license. Id.

Risser held several

jobs which can be considered past relevant employment.2

Risser

has an employment history of unskilled to skilled, light to heavy
work3 as a lingerie department manager at a Boscov’s,

2. Past relevant employment in the present case means work
performed by Risser during the 15 years prior to the date her
claim for disability benefits was adjudicated by the
Commissioner. 20 C.F.R. §§ 404.1560 and 404.1565.
3. The terms sedentary, light, medium and heavy work are defined
in the regulations of the Social Security Administration as
follows:
(a) Sedentary work. Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are
met.
(b) Light work.

Light work involves lifting no more
(continued...)
2

photographer in the portrait studio of a Walmart and a Kmart,
cashier at a Turkey Hill convenience store, cashier and stock
person at a Walmart, and bus driver. Tr. 50-51.
Records of the Social Security Administration reveal
that Risser had earnings in the years 1989 through 2008 as
follows:
1989
1990
1991
1992
1993
1994

3.

$

531.30
966.15
3480.74
4880.49
8229.30
13931.90

(...continued)
than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is
in this category when it requires a good deal of
walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a
full or wide range of light work, you must have the
ability to do substantially all of these activities.
If someone can do light work, we determine that he or
she can also do sedentary work, unless there are
additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more
than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she
can do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more
than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds. If
someone can do heavy work, we determine that he or she
can also do medium, light, and sedentary work.

20 C.F.R. §§ 404.1567 and 416.967.
3

1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
Tr. 137.

13568.26
13817.07
7981.72
4074.92
5662.24
9554.85
8747.39
7680.13
9541.06
15247.49
5342.77
4055.68
14067.97
2989.50

Risser’s total earnings from 1989 through 2008 were

$154,350.93. Id.
Risser claims that she became disabled on June 1, 2008,
because of several physical impairments, including systemic lupus
erythematosus (SLE) which is “a long-term autoimmune disorder4

4. “An autoimmune disorder is a condition that occurs when the
immune system mistakenly attacks and destroys healthy body
tissue. There are more than 80 different types of autoimmune
disorders. . . Normally the immune system's white blood cells
helps protect the body from harmful substances, called antigens.
Examples of antigens include bacteria, viruses, toxins, cancer
cells, and blood or tissues from another person or species. The
immune system produces antibodies that destroy these harmful
substances.
In patients with an autoimmune disorder, the immune system can't
tell the difference between healthy body tissue and antigens. The
result is an immune response that destroys normal body tissues.
The response is a hypersensitivity reaction similar to the
response in allergic conditions.
In allergies, the immune system reacts to an outside substance
that it normally would ignore. With autoimmune disorders, the
immune system reacts to normal body tissue that it would normally
ignore.” Autoimmune disorders, MedlinePlus, U.S. National Library
of Medicine, National Institutes of Health, http://www.nlm.
(continued...)
4

that may affect the skin, joints, kidneys, brain and other
organs.”5

Symptoms of SLE include joint pain and swelling, chest

pain, fatigue, fever with no other cause, general discomfort,
uneasiness or ill feeling (malaise), headaches, numbness,
abdominal pain, and skin discoloration and rash.6
In a document filed with the Social Security
Administration Risser stated as follows: “My hands and feet swell
and my joint[s] just tighten up and I am in pain.

When my hands

swell I am unable to do things with my hands - I can’t ben[d] them
enough to do simple things that most people take for granted.
lup[u]s causes me to be tired. . .

The

I have had migraines since I

was a teenager, since I got lup[u]s those headache[s] have become
stronger, I have passed out.” Tr. 166.

4. (...continued)
nih.gov/medlineplus/ency/article/000816.htm (last visited
June 21, 2010). Organs and tissue impacted by autoimmune
disorders include blood vessels, connective tissue, joints,
muscles and skin. Id.
5. Systemic lupus erythematosus, PubMed Health, A.D.A.M. Medical
Encyclopedia,U.S. National Library of Medicine, http://www.
ncbi.nlm.nih.gov/pubmedhealth/PMH0001471/ (Last accessed August
23, 20120).
6. Id.; several medical records indicate that Risser suffered
from Raynaud’s phenomenon. Tr. 352 and 356. Raynaud’s phenomenon
is defined as “intermittent bilateral ischemia of the fingers,
toes, and sometimes ears and nose, with severe pallor and often
paresthesias and pain, usually brought on by cold or emotional
stimuli and relieved by heat; it is usually due to an underlying
disease or anatomical abnormality.” Dorland’s Illustrated Medical
Dictionary, 1430 (32nd Ed. 2012).
5

After the alleged disability onset date of June 1, 2008,
Risser continued to work part-time until November 26, 2008. Id.
Risser stated that in June, 2008, she “cut [her] hours to 1 day
per month” and “[a]t the end of November [she] was actually
released as an employee.” Id.

Risser further states that “[w]hen

[she] came in one day [she] primarily just did cash register,
coffee, and stock[ed] cigarettes. [She] did not have to do any
heavy stocking or lifting. [She] did not have to sweep or clean,
and [she] did not have to work in the freezer.” Id.
not worked since November 26, 2008. Id.

Risser has

Risser contends that she

receives substantial assistance from family members and friends
who take care of her children and perform household chores and
duties. Tr. 175-182.

Several individuals submitted statements

indicating that they assist Risser with housekeeping and help take
care of Risser’s children. Tr. 212-217.
On November 14, 2008, Risser protectively filed7 an
application for disability insurance benefits and an application
for supplemental security income benefits. Tr. 12, 64-65, 121-133,
135 and 154.

On February 18, 2009, the Bureau of Disability

7. Protective filing is a term for the first time an individual
contacts the Social Security Administration to file a claim for
benefits. A protective filing date allows an individual to have
an earlier application date than the date the application is
actually signed.
6

Determination8 denied Risser’s applications. Tr. 66-75.

On March

10, 2009, Risser requested a hearing before an administrative law
judge. Tr. 12 and 76.

Approximately 11 months later, a hearing

was held on February 18, 2010, before an administrative law judge.
Tr. 20-62.

On May 19, 2010, the administrative law judge issued a

decision denying Risser’s applications. Tr. 12-19.

The Appeals

Council denied Risser’s request for review and, subsequently,
Risser filed a complaint in this court.

The appeal9 became ripe

for disposition on November 10, 2011, when Risser filed a reply
brief.
Under 42 U.S.C. § 405(g) and relevant case law, the
court is limited to reviewing the administrative record to
determine whether the decision of the Commissioner is supported by
substantial evidence. Counsel for the parties are familiar with
the five-step sequential evaluation process10 that the

8. The Bureau of Disability Determination is an agency of the
Commonwealth of Pennsylvania which initially evaluates
applications for disability insurance benefits and supplemental
security income benefits on behalf of the Social Security
Administration. Tr. 67 and 72.
9. Under the Local Rules of Court “[a] civil action brought to
review a decision of the Social Security Administration denying a
claim for social security disability benefits” is “adjudicated as
an appeal.” M.D.Pa. Local Rule 83.40.1.
10. The Commissioner utilizes a five-step process in evaluating
disability insurance benefits and supplemental security income
claims. See 20 C.F.R. §§ 404.1520 and 416.920; Poulos, 474 F.3d
at 91-92. This process requires the Commissioner to consider, in
sequence, whether a claimant (1) is engaging in substantial
(continued...)
7

Commissioner utilizes and the substantial evidence standard of
review.11

For the reasons set forth below we will vacate the

decision of Commissioner denying Risser benefits and remand the
case to the Commissioner for further proceedings.

10. (...continued)
gainful activity, (2) has an impairment that is severe or a
combination of impairments that is severe, (3) has an impairment
or combination of impairments that meets or equals the
requirements of a listed impairment, (4) has the residual
functional capacity to return to his or her past work and (5) if
not, whether he or she can perform other work in the national
economy. Id.
11. 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.’” Pierce v. Underwood, 487 U.S. 552, 565
(1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197,
229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d
198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). Substantial evidence has been described as more
than a mere scintilla of evidence but less than a preponderance.
Brown, 845 F.2d at 1213. In an adequately developed factual
record substantial evidence may be "something less than the weight
of the evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence."
Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to
all the other evidence in the record," Cotter, 642 F.2d at 706,
and "must take into account whatever in the record fairly detracts
from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S.
474, 488 (1971). A single piece of evidence is not substantial
evidence if the Commissioner ignores countervailing evidence or
fails to resolve a conflict created by the evidence. Mason, 994
F.2d at 1064. The Commissioner must indicate which evidence was
accepted, which evidence was rejected, and the reasons for
rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642
F.2d at 706-707. Therefore, a court reviewing the decision of the
Commissioner must scrutinize the record as a whole. Smith v.
Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v.
Califano, 606 F.2d 403, 407 (3d Cir. 1979).
8

A review of the record reveals clear error during the
administrative proceedings.12

We will set forth a brief

discussion of the basis for our decision.
DISCUSSION
The administrative law judge went through the 5-step
sequential evaluation process and determined that Risser had the
ability to engage in a limited range of sedentary work and
consequently she was not disabled.

Id.

At step two of the sequential evaluation process, the
administrative law judge found that Risser had the following
severe medically determinable impairments: systemic lupus
erythematosus, fibromyalgia,13 irritable bowel syndrome, plantar
12. We have thoroughly reviewed the record which consists of 673
pages.
13. Fibromyalgia is described by the American College of
Rheumatology in pertinent part as follows:
Fibromyalgia is an often misunderstood – even
unrecognized – disorder that causes widespread muscle
pain and tenderness which tends to come and go, and
move about the body. This common and chronic condition
also can be associated with fatigue and sleep
disturbances.
Fast facts
! Fibromyalgia affects 2-4% of the population,
predominantly women.
! Fibromyalgia is diagnosed based on patient
symptoms and physical examination. There is no
laboratory, radiographic, or other diagnostic
test, but these can be used to exclude other
conditions.
(continued...)
9

fasciitis,14 and migraines. Tr. 14.

The administrative law judge

indicated that these impairments were “severe” because they

13.

(...continued)
*
*

*

*

*

*

*

*

*

*

What is fibromyalgia?
Fibromyalgia is defined by chronic widespread muscular
pain and symptoms such as fatigue, sleep disturbance,
stiffness, cognitive and memory problems, and symptoms
of depression and anxiety. More localized pain
conditions often occur in patients with fibromyalgia,
including migraine or tension headaches,
temporomandibular disorder, irritable bowel syndrome,
gastroesophageal reflux disorder, irritable bladder,
and pelvic pain syndrome. The symptoms of fibromyalgia
and associated conditions can vary in intensity and
wax and wane over time. Stress often worsens these
symptoms.
*

*

*

*

*

*

*

*

*

*

*

American College of Rheumatology, Practice Management,
Fibromyalgia, http://www.rheumatology.org/practice/clinical/
patients/diseases_and_conditions/fibromyalgia.asp (Last accessed
August 23, 2012). Also, “it is often the rheumatologist who makes
the diagnosis (and rules out other rheumatic diseases), but [the]
primary care physician can provide all the care and treatment for
fibromyalgia . . . .” Id.
14. “The plantar fascia is a thick band of connective tissue
that originates at the heel bone and runs the entire length of
the sole. It helps maintain the arch system of the foot and plays
a role in your balance and phases of your gait. An injury to this
tissue, known as plantar fasciitis, can require physical therapy
. . . Plantar fasciitis is a painful inflamation . . . [and] is
usually found in only one foot. Bilateral plantar fasciitis, on
the other hand, is probably the result of a systemic arthritic
condition.” Is a stationary bike good exercise when you have
plantar fascitis? Livesstrong.com, http://www.livestrong.com/
article/335125-is-a-stationary-bike-good-exercise-when-you-have-p
lantar-fasciitis/ (Last accessed August 23, 2012).
10

significantly limited Risser’s ability to perform basic work
activities.15 Tr. 13.
At step three of the sequential evaluation process, the
administrative law judge found that Risser did not have an
impairment or combination of impairments that met or medically
equaled one of the listed impairments. If Risser’s severe
medically determinable impairments met or equaled a listed
impairment, she would have been considered disabled per se and
awarded disability benefits. See Burnett v. Commissioner of Social
Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000).
Risser argues that the administrative law judge’s
finding that her impairments did not meet or medically equal the
criteria of a listed impairment was erroneous because it was not
based on substantial evidence.

Risser also argues that the

administrative law judge’s residual functional capacity
determination at step 4 of the sequential evaluation process was
erroneous.

Because we find substantial merit in Risser’s first

15. An impairment is “severe” if it significantly limits an
individuals ability to perform basic work activities. 20 C.F.R.
§§ 404.1521 and 416.921. Basic work activities are the abilities
and aptitudes necessary to do most jobs, such as walking,
standing, sitting, lifting, pushing, seeing, hearing, speaking,
and remembering. Id.
An impairment or combination of
impairments is “not severe” when medical and other evidence
establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an
individual ability to work. 20 C.F.R. §§ 404.1521 and 416.921;
Social Security Rulings 85-28, 96-3p and 96-4p.
11

argument relating to the step three analysis, we need not address
the administrative law judge’s residual functional capacity
determination.16
At step three, the administrative law judge concluded,
inter alia, that Risser’s SLE did not meet the requirements of
Listing 14.02 (Systemic lupus erythematosus).

In so finding the

administrative law judge stated in toto as follows:
The claimant’s lupus does not meet the requirements of
Section 14.02 of the Listings, because she does not
experience severe fatigue, fever, malaise, or
involuntary weight loss, and she does not experience
marked limitations in activities of daily living,
marked limitations in maintaining social functioning,
or marked limitations in completing tasks in a timely
manner due to deficiencies in concentration, persistence
or pace. In the claimant’s case, she maintains a
household with three children ages 4, 10, and 12. While
she receives significant assistance from her husband and
nieces at times the claimant’s description of her own
ability to maintain activities of daily living, function
socially, or complete tasks in a timely manner does not
describe a serious or marked limitation in any of those
areas.
Tr. 15.

This statement by the administrative law judge lumps

together the two ways that a claimant can meet the criteria of

16. However, it would be advisable for the Commissioner to give
further consideration to this issue on remand.
12

Listing 14.0217 and is too vague and conclusory for this court to
conduct meaningful review.
As stated, there are two ways to meet Listing 14.02.
need only address the first. The first is by demonstrating that

17. In order to meet Listing 14.02, Risser must demonstrate the
criteria under either subsection A or subsection B. Listing
14.02 states as follows:
14.02 Systemic lupus erythematosus. As described in
14.00D1. With:
A. Involvement of two or more organs/body systems,
with:
1. One of the organs/body systems involved to at least
a moderate level of severity; and
2. At least two of the constitutional symptoms or
signs (severe fatigue, fever, malaise, or involuntary
weight loss).
or
B. Repeated manifestations of SLE, with at least two
of the constitutional symptoms or signs (severe
fatigue, fever, malaise, or involuntary weight loss)
and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner
due to deficiencies in concentration, persistence, or
pace.
20 C.F.R. pt. 404, subpart P, app. 1 (emphasis added).
13

We

(1) the claimant’s SLE involves two or more organ/body systems
where one of the organ/body systems is impacted to a moderate
level of severity and (2) there is present at least two of the
following constitutional signs or symptoms: (1) severe fatigue,
(2) severe fever, (3) severe malaise, or (4) severe involuntary
weight loss.

“Fatigue” in Listing 14.02 is defined as “a frequent

sense of exhaustion that results in significantly reduced physical
activity or mental function.” Section 14.00C (Definitions), 20
C.F.R. pt. 404, subpart P, app. 1. “Malaise” is defined as
“frequent feelings of illness, bodily discomfort, or lack of wellbeing that result in significantly reduced physical activity or
mental function.” Id.

Furthermore, “severe” with respect to

Listing 14.02 has a special meaning.

It is defined as “medical

severity as used by the medical community. The term does not have
the same meaning as it does when we use it in connection with a
finding at the second step of the sequential evaluation
process.[.]” Id.
The administrative law judge did not indicate whether
Risser’s SLE involves two or more organ/body systems to a moderate
level of severity.
requirement was met.

Consequently, we assume he conceded that that
The administrative law judge focuses on the

requirement that the fatigue, fever, malaise or involuntary weight

14

loss be severe.18

The administrative law judge found that they

were not. However, we cannot determine that he used the
appropriate definition of “severe” when so finding. Furthermore,
there is no opinion in the record from a physician stating that
Risser’s fatigue and malaise were not severe from a medical
standpoint.
Risser’s testimony as well as the medical records from
Francis J. Gallagher, M.D.,

Risser’s treating physician suggests

that Risser suffered from fatigue and malaise.

Although Dr.

Gallagher did not specifically state that Risser suffered from
“severe” fatigue and malaise, the medical records of Dr.
Gallagher’s treatment of Risser suggest that the fatigue and
malaise were severe.19

Tr. 352-369

18. Risser conceded that there was no severe weight loss and has
not argued that she suffered from severe fever.
19. For example, treatment notes of Dr. Gallagher dated June 15,
2009, state in pertinent part as follows:
Vonny was seen in the office today for followup of her
systemic lupus. She has an[] additional medical history
of migraine headaches, irritable bowel syndrome,
recurrent cystitis and chronic sinusitis. Her lupus is
manifested by Raynaud’s phenomenon, arthralgias,
fatigue, skin rash, and atypical chest pain. . . She
comes in for a sick visit. She has not been feeling
well recently. She has multiple complaints today. She
is having a lot of dizzy spells. She has numbness on
the right side of her body, both the arm and the leg.
She has been noting some short term memory loss. She is
having pain in the right arm . . .The wrists have been
(continued...)
15

Where a court cannot conduct meaningful review because
the administrative law judge has failed to give an adequate
explanation for the step three determination remand is
appropriate. See Burnett v. Commissioner of Social Sec. Admin.,
220 F.3d at 119-120.

In this case, the administrative law judge

failed to give an adequate explanation for his step three finding.
Our review of the administrative record reveals that the
decision of the Commissioner is not supported by substantial
evidence.

We will, therefore, pursuant to 42 U.S.C. § 405(g)

vacate the decision of the Commissioner and remand for further

19.

(...continued)
swollen . . . She has been complaining of increasing
chest pain and tightness. . . .
ASSESSMENT & PLAN:
1. Systemic lupus. Vonny has a history of lupus with
manifestations as described above. She has a lot of
complaints today. . . .

Tr. 352-353.
16

proceedings.20
An appropriate order will be entered.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
Dated: August 24, 2012

20. We strongly recommend that the Commissioner obtain expert
medical opinion as to whether or not Risser’s impairments meet or
medically equal a listed impairment.
17