O'Connor v. Astrue
Filing
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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 8/27/12. (cc, )
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL S. O’CONNOR,
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Plaintiff
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant
CIVIL NO. 4:11-CV-01214
(Judge Conaboy)
MEMORANDUM
BACKGROUND
The above-captioned action is one seeking review of a
decision of the Commissioner of Social Security ("Commissioner")
denying Plaintiff Michael S. O’Connor’s claim for social security
supplemental security income benefits.
The primary medical
impairment suffered by O’Connor is a below knee amputation of the
right leg. O’Connor uses crutches and contends that he is unable to
use a prosthesis because it irritates and causes infections at the
stump of the amputated leg.
O’Connor also contends that he suffers
from disabling mental impairments, including a learning disorder.
There are basically two issues in the present case. The
first issue relates to the administrative law judge’s
identification of O’Connor’s severe and non-severe medically
determinable impairments at step two of the sequential evaluation
process.
The second issue is two-fold in that it relates to the
administrative law judge’s analysis at step three of the sequential
evaluation process and the consideration of the testimony of a
third-party witness Deborah Strohm, O’Connor’s girlfriend, with
respect to that analysis. Ms. Strohm testified regarding O’Connor’s
alleged inability to wear a prosthetic device. Tr. 591-595.1
An
administrative law judge denied O’Connor’s claim for supplemental
security benefits on April 15, 2010, and the Appeals Council
declined to grant review on May 2, 2011.
The present appeal2 was
filed on June 27, 2011, and became ripe for disposition on December
5, 2011, when O’Connor filed a reply brief.
STANDARD OF REVIEW AND SEQUENTIAL EVALUATION PROCESS
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 process that the Commissioner
utilizes and the substantial evidence standard of review.
For the
reasons set forth below we will vacate the decision of the
Commissioner denying O’Connor supplemental security income
benefits and remand for further proceedings.3
1. References to “Tr. ” are to pages of the administrative
record filed by the Defendant as part of his Answer on September
6, 2011.
2. 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.
3. 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
(continued...)
2
DISCUSSION
A previous action was filed by O’Connor in 2009.
O’Connor v. Astrue, Civil No. 09-238 (M.D.Pa. filed February 2,
2009)(Muir, J.).
In that action O’Connor claimed that he became
3. (...continued)
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).
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 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.
3
disabled on April 10, 2000, and challenged the Commissioner’s
denial of his applications for disability insurance benefits and
supplemental security income benefits. O’Connor’s date last insured
for disability insurance benefits was September 30, 2000.4
The administrative law judge in that prior action went
through the five-step sequential evaluation process and concluded
that O’Connor had not engaged in substantial gainful activity since
April 10, 2000; O’Connor suffers from a severe impairment of
“residuals of right-sided below the knee amputation” and the nonsevere impairments of degenerative disc disease of the lumbar
spine, depression, alcohol abuse and a learning disability;
O’Connor’s impairments did not individually or in combination meet
or equal a listed impairment; O’Connor could not perform his prior
relevant work as a bakery helper but that he had the residual
4. 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.” In
order to establish entitlement to disability insurance benefits
O’Connor was required to establish that he suffered from a
disability on or before the date last insured. 42 U.S.C. §
423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo
v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).
Supplemental security income (SSI) 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. Insured
status is irrelevant in determining a claimant’s eligibility for
supplemental security income benefits.
4
functional capacity to perform a limited range of sedentary work
including work as an order clerk and inspector. Tr. 55-65.
At step three of the sequential evaluation process the
administrative law judge considered Listing 1.05B which provides as
follows:
1.05 Amputation (due to any cause).
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B. One or both lower extremities at or above the tarsal
region, with stump complications resulting in medical
inability to use a prosthetic device to ambulate
effectively, as defined in 1.00B2b, which have lasted or
are expected to last for at least 12 months;
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(Emphasis added.)
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The administrative law judge found that
O’Connor’s amputation did “not meet the requirements of Section
1.05 of the Listings, because he does not have stump complications
resulting in the medical inability to use a prosthetic device to
ambulate effectively, which have lasted or were expected to last
for at least twelve months.”
Tr. 58-59.
In so finding the
administrative law judge relied on testimony from a medical
expert, Haddon C. Alexander, M.D., who stated that “there was no
objective medical evidence as to why the claimant could not wear
the prosthesis.”
Tr. 74.
The Appeals Council declined review and
as stated above O’Connor filed an action in this court which was
assigned to Judge Muir.
5
Judge Muir on August 28, 2009, issued an order affirming
the decision of the Commissioner with respect to O’Connor’s
application for disability insurance benefits.
Specifically,
Judge Muir found that O’Connor’s date last insured for entitlement
to disability insurance benefits was September 30, 2000, and that
substantial evidence supported the Commissioner’s decision that
O’Connor could engage in sedentary work and was not disabled prior
to November 1, 2006.
With respect to O’Connor’s claim for
supplemental security income benefits Judge Muir remanded the case
for the limited purpose of further consideration of medical
evidence from on and after November 1, 2006.
Judge Muir in a lengthy memorandum set forth his reasons
for remanding the case for further proceedings.
In relevant part
Judge Muir stated as follows:
O’Connor has a 11th grade education and can read,
write and understand English. Tr. 101. O’Connor is not
married and has no children. Tr. 194.
O’Connor has a limited work and earnings history. At
the time of the onset of his alleged disability O’Connor
was working for Pizza Hut “mix[ing] the pizza dough.”
Tr. 291 and 314-316. In 1979, at the age of 13, O’Connor
had a below the knee amputation of his right leg. Tr.
339. He was prescribed a prosthetic limb but because of
skin irritations to his stump he rarely used the
prosthetic limb. Tr. 393. He has had a long history of
problems with the prosthetic limb and stopped wearing
the prosthetic limb in 1989 after suffering a fracture
to his right leg in a bicycle accident. Tr. 338 and 458.
In 1992, O’Connor again fractured his right leg when
diving into a pool. Tr. 458. The administrative record
reveals that during the 70s, 80s, and 90s, he had
educational difficulties, abused alcohol and suffered
from depression. Tr. 208-275 and 334-340. On July 3,
6
1995, he was evaluated and diagnosed by Joseph
Levenstein, Ph.D., with alcohol dependence and alcoholinduced persisting dementia and Dr. Levenstein was of
the opinion that O’Connor had “no motivation for
recovery.” Tr. 345. Dr. Levenstein in his report of
the evaluation dated July 16, 1995, stated as follows:
At age 13, Mr. O’Connor was playing on the railroad
tracks, and was run over by a train, causing the
amputation of his leg. He has twice broken his
leg, in 1989 and 1992, apparently exacerbating his
problems with his prosthesis. He was drinking both
times he broke his leg.
After he lost his leg, Mr. O’Connor began drinking,
typically on weekends with friends. He would drink
until he threw up or passed out. By age 16, he was
drinking daily. He has never tried to stop
drinking and has never been to rehab. In 1992 or
1993, Mr. O’Connor was arrested for DUI, and had
his license suspended. He has decided not to
attempt to get it back . . . .
Mr. O’Connor has a long history of problem
behaviors. He was in special education in school
and was frequently truant. His truancy increased
after the accident and after he began drinking. In
the twelfth grade, he dropped out of school . . . .
Mr. O’Connor was born and raised in Coraopolis.
Both his parents were alcoholics, and Mr. O’Connor
recalled that his mother was able to outdrink him
when he was a young man. . . .
Following high school, Mr. O’Connor worked in a
variety of settings, usually as a short-order cook.
He would hold that job for a few months and then
get fired for coming in drunk . . . .
His intelligence is estimated to fall in the
borderline range . . . virtually all of his
emotional and behavioral problems could
realistically be attributed to chronic alcoholism.
He appears to be a late stage alcoholic, and
therefore even minor stressors will trigger
drinking episodes. He has no motivation for
recovery and little insight into his condition.
7
Tr. 341-345. Dr. Levenstein further stated that
O’Connor “has sufficient cognitive capacity to
understand, retain, and follow simple to moderately
complex instructions.” Tr. 345. Because O’Connor
claims he became disabled on April 10, 2000, these preApril 10, 2000, records have little relevance to the
present disability claim other than to give some
historical background and give an indication of his
prior relevant work.
O’Connor has prior relevant work as a bakery helper a
job that O’Connor performed on crutches at the
unskilled, light work level. He also performed the work
at Pizza Hut on crutches. Social Security
Administration earnings records reveal that O’Connor in
1984 earned $2310.40, in 1985 $4218.69, in 1986
$2616.27, in 1987 $3290.32, in 1988 $5670.80, in 1989
$5147.85, in 1994 $2256.75, in 1999 $8644.74 and in 2000
$1439.62. Tr. 200. No earnings are reported for 1990
through 1993 and 1995 through 1998. Tr. 200. O’Connor
has not worked since April 10, 2000.
O’Connor has a history of criminal misconduct. In
1994 he was incarcerated for burglarizing his uncle’s
business. Tr. 458. He apparently violated parole in
2001 and was again incarcerated. Tr. 293. He was
released from a state prison in late September, 2006.
Tr. 389. It is not clear that O’Connor’s incarceration
was continuous from 2001 to September, 2006. However,
the administrative record does contain medical records
from early 2004 to September 19, 2006, from state
correctional institutions. Tr. 389-453. A
psychological assessment report of O’Connor by Kathleen
O. Parson, M.Ed., dated March 25, 2004, while O’Connor
was incarcerated in a state prison reveals that
O’Connor’s IQ is 88 and his intellectual rating is low
average. Tr. 423. An entry in prison records from the
State Correctional Institution-Smithfield dated January
25, 2006, indicates that O’Connor “is a certified chef
and baker and plans to work when he gets out. Mr.
O’Connor is missing part of his leg but he said he makes
money and doubts if he will apply for SSDI.” Tr. 412.
An entry in prison records dated June 1, 2006, reveals
that O’Connor commenced planning to apply for social
security benefits. Tr. 412. O’Connor protectively filed
his applications for disability insurance benefits and
supplemental security income benefits on September 7,
8
2006, when he was still incarcerated at the State
Correctional Institution-Smithfield. Tr. 411.
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The error committed by the administrative law judge as
will be more fully explained below relates to developing
the record with regard to medical records from late 2006
and 2007.
The administrative record reveals that O’Connor was
incarcerated in early March 2004 in a state correctional
institution. Tr. 451-452. As stated above one of the
claims of O’Connor is that he declines to wear the
prosthesis because it irritates and causes infections to
the stump of his below knee amputation. While in
prison, O’Connor stated that he had a prosthetic leg at
home, but chose not to use it. Tr. 451.
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The only evidence of a significant problem with
irritation to O’Connor’s stump after his alleged onset
date is from November, 2006. Tr. 533 and 535. On
November 23, 2006, O’Connor visited the emergency
department of Harrisburg Hospital complaining of pain to
the stump of his right leg. Tr. 535. The physical
examination revealed six small pustules on the stump of
his right knee. Tr. 535. Swelling (effusion) was
observed at the knee joint. Fluid was removed from the
knee joint using a catheter and sent to the laboratory
for analysis. Tr. 535. The attending physician started
O’Connor on a topical antibiotic and prescribed Vicodin
for pain. The diagnosis was “cellulitis about the right
knee.” Tr. 536. On November 28, 2006, O’Connor had the
knee reexamined at the emergency department of the
Harrisburg Hospital. Tr. 533. The report of that visit
states in pertinent part as follows: “There is a
pustular lesion to the top of the knee with about 1.5 cm
of surrounding erythema. He has broken pustules on
either side of the knee. He does not appear to have a
knee effusion at this time. Except for the isolated
area of redness around the one lesion, there is no
increased warmth or erythema.” Tr. 533. O’Connor was
discharged from the emergency department with
instructions to continue using the topical antibiotic
until it was gone and he was also instructed to use warm
compresses. Tr. 533. He was advised to follow-up with
an orthopedist. Tr. 533.
9
On February 1, 2007, Raymond E. Dahl, D.O., an
orthopedic specialist, examined O’Connor. Tr. 528. Dr.
Dahl found that O’Connor was pleasant and cooperative.
Tr. 528. O’Connor complained that his prosthesis was
causing sores. Tr. 528. However, the physical
examination revealed that O’Connor’s right stump was
clean, dry and intact, with only a small ½ centimeter
area of “somewhat” cracked skin. Tr. 528. Dr. Dahl
found that O’Connor had good motor function in both
lower extremities and recommended no further treatment,
but referred O’Connor for a fitting of a new prosthesis.
Tr. 528. The administrative record reveals that
O’Connor’s insurance carrier denied the request for a
new prosthetic leg and Dr. Dahl wrote a letter to the
carrier stating it was medically necessary. Tr. 527.
There is no indication in the record as to how this
dispute was resolved.
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Of great importance is the fact that with respect to
O’Connor’s claim for disability insurance benefits no
treating or examining physician has stated that O’Connor
was totally disabled on or before September 30, 2000.
No physician has indicated that during the period from
April 10, 2000, through September 30, 2000, O’Connor was
unable to engage in the sedentary work identified by the
vocational experts.
The fact that O’Connor used two crutches or two canes
does not automatically result in a finding that O’Connor
met listing 1.05. No physician has indicated that
O’Connor was unable to wear a prosthesis during the
period of April 10, 2000, through September 30, 2000.
The records pre-dating April 10, 2000, suggest that it
was more a matter of choice on the part of O’Connor to
go without a prosthesis rather than a medical necessity.
Although the administrative record contains evidence
that O’Connor had stump irritations/infections, there is
insufficient evidence to conclude that those conditions
lasted for the requisite continuous 12 month period
required by the Social Security Act. Although at the
time of the administrative law judge’s decision,
O’Connor may have been financially unable to obtain a
new, properly fitting prosthesis the evidence does not
show that he was medically unable to use a prosthesis
for a continuous 12 month period. The burden was on
O’Connor to establish stump complications resulting in a
medical inability to use a prosthesis. O’Connor failed
to meet this burden.
10
The record relating to O’Connor’s claim for
supplemental security income benefits is not adequately
developed. Particularly issues relating to O’Connor’s
mental condition on and after November 1, 2006, are not
fully developed.
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The medical and mental health records as stated earlier
in this order indicate that O’Connor has low average
intelligence and “has sufficient cognitive capacity to
understand, retain, and follow simple to moderately
complex instructions.” Tr. 345 and 423. We find no
merit to O’Connor’s claim that he did not have the
mental ability to perform the duties of an order clerk
prior to November 1, 2006. However, the record is not
adequately developed with respect to O’Connor’s mental
condition after that date.
O’Connor contends the matter should be remanded for
further proceedings because the administrative law judge
did not fully develop the record regarding the GAF
scores of 45 and 48 noted in the psychosocial assessment
of October, 2007, by the unidentified evaluator at
Family Service Partners. We find that this argument has
merit only with respect to O’Connor’s claim for
supplemental security income benefits.
We find no fault with the administrative law judge’s
conclusion that O’Connor could engage in sedentary work
with the limitations noted in his decision prior to
November 1, 2006. Our review of the administrative
record reveals that the decision of the Commissioner
denying O’Connor disability insurance benefits is
supported by substantial evidence. However, the
decision relating to supplemental security income will
be remanded for further proceedings.
Tr. 614-618, 628, 632-633 and 637-639 (footnotes omitted).5
5. In this quotation from Judge Muir’s memorandum we included
his citations to the administrative record filed in that case.
(continued...)
11
After the case was remanded to the Commissioner, the
same administrative law judge held a hearing on December 22, 2009,
and as stated issued a decision on April 15, 2010, denying
O’Connor supplemental security income benefits.
The administrative law judge went through the five-step
sequential evaluation process.
At step one of the sequential evaluation process the
administrative law judge found that O’Connor had not engaged in
substantial gainful work activity since September 7, 2006, the
date O’Connor filed his application for supplemental security
income benefits.
Tr. 552.
At step two of the sequential evaluation process, the
administrative law judge found that O’Connor had the following
severe impairment: status post right below knee amputation.
552.
Tr.
The administrative law judge found that O’Connor’s
depressive disorder, anxiety disorder and alcohol abuse, singly
and in combination were non-severe6 impairments because they did
5. (...continued)
The administrative record was Document No. 8. O’Connor v. Astrue,
Civil No. 09-238 (M.D.Pa. Filed February 5, 2009)(Doc. 8).
6. 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,
(continued...)
12
not cause more than a minimal limitation in O’Connor’s ability to
perform basic mental work activities. Id.
One troubling aspect of
the administrative law judge’s step two analysis is that he did
not include a learning disorder as a medically determinable nonsevere impairment as he did in his prior decision of June 20,
2008.
In finding that O’Connor did not have any severe
impairments the administrative law judge rejected several low
Global Assessment of Functioning (GAF) scores7 in the range of 40
6. (...continued)
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.
7. The GAF score allows a clinician to indicate his judgment of
a person’s overall psychological, social and occupational
functioning, in order to assess the person’s mental health
illness. Diagnostic and Statistical Manual of Mental Disorders
3–32 (4th ed. 1994). A GAF score is set within a particular range
if either the symptom severity or the level of functioning falls
within that range. Id. The score is useful in planning treatment
and predicting outcomes. Id. The GAF rating is the single value
that best reflects the individual’s overall functioning at the
time of examination. The rating, however, has two components:
(1) symptom severity and (2) social and occupational functioning.
The GAF is within a particular range if either the symptom
severity or the social and occupational level of functioning
falls within that range. When the individual’s symptom severity
and functioning level are discordant, the GAF rating reflects the
worse of the two. Thus, a suicidal patient who is gainfully
employed would have a GAF rating below 20. A GAF score of 21-30
represents behavior considerably influenced by delusions or
hallucinations or serious impairment in communication or judgment
or inability to function in almost all areas. A GAF score of 31(continued...)
13
to 50 and adopted the GAF score of 55 assessed on December 23,
2009, by T.W. Ponessa & Associates. Tr. 555.
At step three of the sequential evaluation process the
administrative law judge found that O’Connor’s impairments did not
individually or in combination meet or equal a listed impairment.
Tr.
553.
In so finding, the administrative law judge erroneously
and oddly stated that “there is no listing for a below knee
amputation.” Id.
The administrative law judge went through the remaining
steps and found that O’Connor was unable to perform any past
relevant work but that he had the residual functional capacity to
engage in a limited range of sedentary work.
The administrative law judge included both physical and
mental limitations in the residual functional capacity assessment.
Tr. 553-554.
Specifically, he found that O’Connor was limited to
7. (...continued)
40 represents some impairment in reality testing or communication
or major impairment in several areas, such as work or school,
family relations, judgment, thinking or mood. Id. A GAF score of
41-50 indicates serious symptoms or any serious impairment in
social, occupational or school functioning. Id. A GAF score of
51 to 60 represents moderate symptoms or any moderate difficulty
in social, occupational, or school functioning. Id. A GAF score
of 61 to 70 represents some mild symptoms or some difficulty in
social, occupational, or school functioning, but generally
functioning pretty well with some meaningful interpersonal
relationships. Id. A GAF score of 71 to 80 represents transient
symptoms, if present, and expectable reactions to psychosocial
stressors or no more than slight impairment in social,
occupational, or school functioning. Id.
14
“unskilled, rote repetitious work that does not require precise
attention to detail. He must be able to alternate between sitting
and standing at will. The claimant’s standing and walking are
limited to fifteen to twenty minutes at a time with no more than a
total of two hours in an eight hour day.
The claimant is limited
to jobs which would permit him to use two crutches to ambulate.
While using crutches, he is precluded from lifting or carrying.
The claimant should never do repetitious stooping or bending.
should never climb or crawl.
He
Furthermore, he is precluded from
jobs that would require working around heights or moving
machinery.” Id.
At step five, the administrative law judge based on a
residual functional capacity of a limited range of unskilled,
sedentary work as described above and the testimony of a
vocational expert found that O’Connor had the ability to perform
unskilled, sedentary work as a semi-conductor bonder, carding
machine operator and stuffer machine tender, and that there were a
significant number of such jobs in the local and national
economies. Tr. 556.
The administrative record in this case is 795 pages in
length and we have thoroughly reviewed that record.
O’Connor
argues that the administrative law judge erred by (1) not
addressing relevant evidence, (2) failing to consider Listing
15
1.05(B) and (3) finding that O’Connor did not have a severe mental
impairment.
arguments.
We find some merit in O’Connor’s first two
However, the third argument lacks merit.
The
administrative law judge appropriately relied on the GAF score of
55, representing moderate symptoms, in finding that O’Connor did
not have a severe mental impairment.
Furthermore, the
administrative law judge appropriately included mental functional
limitations in O’Connor’s RFC assessment.
It is very troubling, however, that the administrative
law judge did not mention or address the testimony of O’Connor’s
girlfriend as well as stating that “there is no listing for a
below the knee amputation.”
O’Connor’s girlfriend with whom he lived for more than
two years testified that O’Connor experiences “nasty looking”
blister on his stump after using his prosthesis for a week or two.
Tr. 590-591 and 594.
She indicated it takes approximately two
weeks for the blisters to clear during which Mr. O’Connor places
his stump in cold water. Tr. 591-592.
She also observed that the
blisters break, which caused greater pain for O’Connor. Tr. 592.
It is legal error for an administrative law judge to
fail to consider third-party statements or testimony regarding the
functional abilities of a claimant.
Burnett v. Comm’r of SSA, 220
F.3d 112, 122 (3d Cir. 2000); Bunch v. Astrue, Civil Action No.
16
10-1921, slip op. *15 (M.D.Pa. filed Nov.21, 2011)(Nealon, J.);
Oldenburgh v. Astrue, 2009 U.S. Dist. LEXIS 24867 * 26 (M.D. Pa.
March 26, 2009)(Muir, J.).
The Social Security regulations and
rulings recognize the relevance of statements from family members
and others who know a claimant.
See 20 C.F.R. §§ 416.912, 416.913
and 416.929; SSR 96-7p and 96-8p.
Such statements can shed light
on a claimant’s impairments, limitations, symptoms, functioning
and credibility. Id.
This court has on several occasions remanded
cases for further proceedings because of an administrative law
judge’s failure to address statements of third-parties who had
contact with and observed an applicant for disability benefits.
When an administrative law judge fails to acknowledge and comment
on evidence of a parties symptoms, pain and functioning the
reviewing district court cannot ascertain if the administrative
law judge considered it appropriately.
We cannot determine if the
administrative law judge appropriately considered the testimony of
O’Connor’s girlfriend, Ms. Strohm.
If O’Connor’s severe medically determinable impairment
of “status post right below knee amputation” met or equaled a
listed impairment, he would have been considered disabled per se
and awarded supplemental security income benefits. See Burnett v.
Commissioner of Social Sec. Admin., 220 F.3d 112, 119 (3d Cir.
2000).
17
O’Connor argues that the administrative law judge failed
to address Listing 1.05B.
substantial merit.
We find that that argument has
The administrative law judge’s step three
analysis consisted of the following three sentences: “The clinical
findings necessary to meet or medically equal any physical
listing, including musculoskeletal listings, are not present.
Listing 1.04 is not met or equaled as there is no disorder of the
spine resulting in compromise of a nerve root or the spinal cord.
Moreover, there is no listing for a below knee amputation.” Tr.
553. The administrative law judge did not address Listing 1.05.
This statement is too perfunctory for this court to conduct
meaningful review.
Furthermore, it appears to be erroneous
because there is a listing for a below knee amputation – Listing
1.05.
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)
18
vacate the decision of the Commissioner and remand for further
proceedings.8
An appropriate order will be entered.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
Dated: August 27, 2012
8. We strongly recommend that the Commissioner obtain expert
medical opinion as to whether or not O’Connor’s severe impairment
(a below the knee amputation) meets or medically equal a listed
impairment on or after November 1, 2006.
19
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