KUZNETSOV v. ASTRUE

Filing 13

ORDER granting in part and denying in part 8 Plaintiff's Motion for Summary Judgment; denying 10 Defendant's Motion for Summary Judgment; and remanding the case to the Commissioner for further proceedings. Signed by Judge Alan N. Bloch on 1/3/2012. (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHRISTY DAWN KUZNETSOV,

Plaintiff,
vs.

Civil Action No. 10-7-E

MICHAEL J. AS TRUE ,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

o R D E R
AND NOW, this 3rd day of January, 2012, upon consideration
of Defendant's Motion for Summary Judgment (document No. 11)
filed in the above-captioned matter on August 23, 2010,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff's Motion for
Summary Judgment (document No.9) filed in the above-captioned
matter on July 22, 2010,
IT IS HEREBY ORDERED that said Motion is GRANTED IN PART
and DENIED IN PART.

Specifically, Plaintiff's Motion is granted

to the extent that it seeks a remand to the Commissioner of
Social Security ("Commissioner") for further evaluation as set
forth below and denied in all other respects.

Accordingly, this

matter is hereby remanded to the Commissioner for further
evaluation under sentence four of 42 U.S.C. § 405(g) in light of
this Order.

I .

Background
On December 6, 2007, Plaintiff Christy Dawn Kuznetsov filed

her claim for Supplemental Security Income ("SSP') under Title
XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f.
Specifically, Plaintiff claimed that she became disabled on
December I, 2005, due to mood disorder and being underweight.
(R.

106).
After being denied initially on March 3, 2008, Plaintiff

sought, and obtained, a hearing before an Administrative Law
Judge ("ALJ") on May 21, 2009.

(R.

16, 51, 66-68).

In a

decision dated June 11, 2009, the ALJ denied Plaintiff's request
for benefits.

(R. 16-26).

The Appeals Council declined to

review the ALJ's decision on November 13, 2009.

(R.

1-4).

On

January 8, 2010, Plaintiff filed a timely appeal with this
Court, and the parties have filed cross-motions for summary
judgment.

II.

Standard of Review
Judicial review of a social security case is based upon the

pleadings and the transcript of the record.
405(g).

See 42 U.S:C. §

The scope of review is limited to determining whether

the Commissioner applied the correct legal standards and whether
the record, as a whole, contains substantial evidence to support
the Commissioner's findings of fact.
F.3d 589, 592 (3d Cir. 2001)

See Matthews v. Apfel, 239

(" [t]he findings of the
2

Commissioner of Social Security as to any fact,
substantial evidence, shall be conclusive"

if supported by

(quoting 42 U.S.C. §

405(g))) i Schaudeck v. Commissioner of Soc. Sec. Admin., 181
F.3d 429, 431 (3d Cir. 1999)

(noting that the court has plenary

review of all legal issues, and reviews the administrative law
judge's findings of fact to

determin~

whether they are supported

by substantial evidence) .
ftSubstantial evidence" is defined as "more than a mere
scintilla.

It means such relevant evidence as a reasonable mind

might accept as adequate" to support a conclusion.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999).

Plummer v.

However, a "single

piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict
created by countervailing evidence."
310, 317 (3d Cir. 2000)

Morales v. Apfel, 225 F.3d

(quoting Kent v. Schweikert 710 F.2d

110, 114 (3d Cir. 1983)).

"Nor is evidence substantial if it is

overwhelmed by other evidence - particularly certain types of
evidence (e.g., that offered by treating physicians) - or if it
really constitutes not evidence but mere conclusion."

Id.

A disability is established when the claimant can
demonstrate some medically determinable basis for an impairment
that prevents him or her from engaging in any substantial
gainful activity for a statutory twelve-month period.

See

Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir. 2001).
3

"A

claimant is considered unable to engage in any substantial
gainful activity '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 .... '"

Id. at

39 (quoting 42 U.S.C. § 423 (d) (2) (A)).
The Social Security Administration ("SSA") has promulgated
regulations incorporating a five-step sequential evaluation
process for determining whether a claimant is under a disability
as defined by the Act.

See 20 C.F.R. § 416.920.

In Step One,

the Commissioner must determine whether the claimant is
currently engaging in substantial gainful activity.
C.F.R. § 416.920(b).
denied.

See 20

If so, the disability claim will be

See Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

If

not, the second step of the process is to determine whether the
claimant is suffering from a severe impairment.

416.920(c).

See 20 C.F.R. §

"An impairment or combination of impairments is not

severe if it does not significantly limit [the claimant's]
physical or mental ability to do basic work activities."
C.F.R. § 416.921(a}.

20

If the claimant fails to show that his or

her impairments are "severe," he or she is ineligible for
disability benefits.

If the claimant does have a severe

impairment, however, the Commissioner nlust proceed to Step Three
4

and determine whether the claimant's impairment meets or equals
the criteria for a listed impairment.
416.920{d).

See 20 C.F.R.

§

If a claimant meets a listing, a finding of

disability is automatically directed.

If the claimant does not

meet a listing, the analysis proceeds to Steps Four and Five.
Step Four requires the ALJ to consider whether the claimant
retains the residual functional capacity ("RFC")
or her past relevant work.

See 20 C.F.R.

§

to perform his

416.920(e).

The

claimant bears the burden of demonstrating an inability to
return to his or her past relevant work.
40 F.3d 43, 46 (3d Cir. 1994).

See Adorno v. Shalala,

If the claimant is unable to

resume his or her former occupation, the evaluation moves to the
fifth and final step.
At this stage, the burden of production shifts to the
Commissioner, who must demonstrate that the claimant is capable
of performing other available work in the national economy in
order to deny a claim of disability.
§

416.920{g).

See 20 C.F.R.

In making this determination, the ALJ should

consider the claimant's RFC, age, education, and past work
experience.

See id.

The ALJ must further analyze the

cumulative effect of all the claimant's impairments in
determining whether he or she is capable of performing work and
is not disabled.

See 20 C.F.R.

§

5

416.923.

III. The ALJ's Decision

The ALJ applied the sequential evaluation process when
reviewing Plaintiff's claim for benefits.

In particular, the

ALJ found that Plaintiff had not been engaged in substantial
gainful activity since December 6, 2007, the date Plaintiff
filed her application.

(R. 18).

The ALJ also found that

Plaintiff met the second requirement of the process because she
had severe impairments in the form of depression and anxiety. He
found, however, that Plaintiff's issues with being underweight
did not constitute a severe impairment.

(R. 18-19).

The ALJ

concluded that Plaintiff's impairments did not meet any of the
listings that would satisfy Step Three.

(R.

19-21).

The ALJ found that Plaintiff retained the RFC to engage in
a wide range of work at all exertional levels and was capable of
sitting, standing, and/or walking for up to six hours in an
eight-hour workday.

(R. 21).

In addition, he found that

Plaintiff was capable of understanding, remembering, carrying
out and performing only simple, routine, and repetitive tasks as
consistent with unskilled work activity.

(R. 21).

The ALJ

found that Plaintiff was able to satisfy the mental unskilled
and physical employment demands for eight-hours per day, forty
hours per week.

(R. 21 24).

Based on this RFC, as well as

Plaintiff's age, education, and work history, the ALJ found that
Plaintiff has no past relevant work and moved on to Step Five.
6

(R. 24).

In lieu of vocational expert ("VEil) testimonYt the ALJ

used Section 204.00 of the Medical-Vocational Guidelines as a
framework for decision-making and relied on Social Security
Ruling ("SSR II

)

85-15 t 1985 WL 56857 t at *1 (1985)t

whether or not Plaintiff was disabled.

(R. 24 25).

to determine
The ALJ

concluded that Plaintiff retained the ability to perform the
basic mental demands of unskilled work and that her mental
limitations did not result in deficits which would preclude the
performance of competitive remunerative work requiring the
ability to understand t carry out t and remember simple
instructions and perform simple tasks.

(R. 25).

The ALJ

further concluded that while Plaintiffts ability to perform work
at all exertional levels had been compromised by nonexertional
limitations t her nonexertional limitations had little or no
effect on the occupational base of unskilled work at all
exertional levels.

(R. 25).

Plaintiff was not disabled.

IV.

AccordinglYt the ALJ found that
(R. 25).

Legal Analysis
Plaintiff raises several arguments as to why the ALJ erred

in finding that she was not disabled.

While the Court does not

fully agree with the majority of the arguments set forth by
Plaintiff t it does agree that remand is warranted in this case.
SpecificallYt the Court finds that the ALJ failed properly to
relate SSR 85-15 to Plaintiffts specific nonexertional
7

limitations insofar as he failed to make explicit how SSR 85-15
is probative as to the way in which Plaintiff's particular
mental limitations impact her occupational job base.
Accordingly, the Court will remand the case for further
consideration.
Plaintiff argues that the ALJ erred at the last step of the
process by improperly relying on the Medical-Vocational
Guidelines ("the Grids") and SSR 85-15 in lieu of vocational
expert testimony.

Specifically, Plaintiff contends that the ALJ

made a conclusory reference to the Ruling without explaining how
it specifically related Plaintiff's work-related limitations to
the occupational job base.

The Government, in response, argues

that the ALJ abided by Acquiescence Ruling (AR) 01-1(3) by
explaining that pursuant to SSR 85-15, Plaintiff was able to
meet the basic mental demands of unskilled work and that,
therefore, his reliance on the Grids as guidance to find that
Plaintiff was not disabled was reasonable. The Court agrees that
the record does not demonstrate that the ALJ properly explained
the "fit" between the facts of this case and the way in which
SSR 85-15 dictates that Plaintiff's specific mental limitations
impact her ability to work.
The United States Court of Appeals for the Third Circuit
has held that it is improper for an ALJ to rely solely on the
Grids at Step Five to determine whether a claimant could perform
8

any substantial gainful activity where that claimant had
nonexertional limitations.
Cir. 2000).

See Sykes v. Apfel, 228 F.3d 259 (3d

The Court explained that "in the absence of a

rulemaking establishing the fact of an undiminished occupational
base, the Commissioner cannot determine that a claimant's
nonexertional impairments do not significantly erode his
occupational base under the medical-vocational guidelines
[alone]."

Id. at 261.

After Sykes, the SSA issued Acquiescence

Ruling 01-1(3), directing that where an individual has a
nonexertional limitation, an ALJ cannot rely exclusively on the
Grids as a framework for decision-making and must instead:
(1)
Take or produce vocational evidence, such as from a
vocational expert, the DOT, or other similar evidence (such
as a learned treatise) i or
(2)
Provide notice that [the ALJ] intend[s] to take or
[is] taking administrative notice of the fact that the
particular nonexertional limitation(s) does not
significantly erode the occupational base, and allow the
claimant the opportunity to respond before [] deny [ing] the
claim.
AR 01-1(3), 2001 WL 65745 at *4 (S.S.A.).
The SSA, however, carved an exception explaining that the
Ruling did not apply to claims where an ALJ relies on an SSR
"that includes a statement explaining how the particular
nonexertional limitation(s) under consideration in the claim
being adjudicated affects the claimant's occupational job base."
Id.

If an ALJ chooses to rely on an SSR to support the finding

9

that jobs exist in the national economy that an individual can
perform, he or she must cite to the SSR in the determination or
decision.

Id.

Accordingly, in a case where a claimant suffers exclusively
from nonexertional limitations, it is not necessarily improper
for an ALJ to forego vocational expert testimony at Step Five
and use the Grids as a framework for decision-making while
relying upon an SSR to determine a claimant's occupational job
base.

See Allen v. Barnhart, 417 F.3d 396, 404

(3d Cir. 2005).

Pursuant to Allen, however, an ALJ may not rely on a ruling "in
summary fashion" without providing an explanation of how a
claimant's particular work-related limitations is addressed by a
specific aspect of that ruling.

See id. at 404.

reference" to a ruling will not suffice.

A "conclusory

Id. at 406.

Instead,

an ALJ must demonstrate a "fit between the facts of a given
case, namely the specific nonexertional impairments, and the way
in which the Rule dictates that such nonexertional limitations
impact the base."

Id.

(internal quotations omitted).

Indeed,

the Third Circuit stated that "it must be crystal-clear that the
SSR is probative as to the way in which the nonexertional
limitations impact the ability to work, and thus, the
occupational job base."

Id. at 407 (emphasis added) .

In the present case, the ALJ concluded that Plaintiff had
the RFC to perform a wide range of work at all exertional levels
10

and could perform the basic mental demands of unskilled work.
(R. 21-25).

In doing so, he relied on SSR 85-15 in conjunction

with Section 204.00 of the Grids as a framework for decisionmaking.

(R. 25).

The purpose of SSR 85-15 is to provide a

"framework for decisions concerning persons who have only a
nonexertional limitation(s) of function."
56857 at *1 (1985).

SSR 85 IS, 1985 WL

It contains "hypothetical examples of

persons with nonexertional impairments and the effect of those
limitations on their ability to perform certain types of work."
Rivera v. Astrue, 2009 WL 1065920, at '1:9 (W.D. Pa. Apr. 20,
2009) .
In relying on SSR 85-15 at the last step of his analysis,
the ALJ recited the following:
Social Security Ruling 85-15 states that the
basic mental demands of competitive, remunerative,
unskilled work include the abilities to understand,
carry out and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual
work situations; and to deal with changes in a routine
work setting on a sustained basis;
(R. 25).

The ALJ then concluded:

[t)he evidence in this case shows that claimant's
documented mental limitations do not result in
deficits which would preclude the performance of
competitive remunerative work requiring the ability to
understand, carry out, and remember simple
instructions and perform simple tasks.
(Id.)

The ALJ further found that Plaintiff's:
ability to perform work at all exertional levels has
been compromised by nonexertional limitations.
11

However, these limitations have little or no effect on
the occupational base of unskilled work at all
exertional levels. A finding of "not disabled" is
therefore appropriate under the framework of Section
204.00 in the Medical-Vocational Guidelines. Thus,
administrative notice is taken that there are jobs in
existence in significant numbers in the national
economy that the claimant would be able to perform.
Id. )

Plaintiff contends that the ALJ's reliance on SSR 85­
15 was improper because he did not explain how Plaintiff's
particular mental limitations relate to any of the
categories or examples set forth in SSR 85-15.

See Meyler

v. Commissioner of Social Security, 238 Fed. Appx. 884, 890
(3d Cir. 2007). The Court agrees.
The ALJ's citation to SSR 85-15 wus solely for the
purpose of defining the mental demands of unskilled work.
Beyond a brief recitation of the three requirements of
unskilled work, there was no further discussion of SSR 85­
15 in his determination.

Although the ALJ was entitled to

rely on SSR 85-15 as a substitute for an individualized
determination by a vocational expert, he was required to do
more than make a generalized citation to the Ruling.

See

Allen, 417 F.3d at 405 (determination not supported by
substantial evidence where ALJ's "conclusion [at the last
step] onlyaddresse[d] in general fashion the mental
limitations for simple, routine, repetitive work").

12

The

ALJ must demonstrate the "fit between the facts of [the
particular] case, namely,

[Plaintiff's] specific

nonexertional impairments, and the way in which the Rule
dictates that such nonexertional limitations impact the
case,"

Id, at 406.

Merely making reference to SSR 85-15

"does not end the inquiry,"

Fahy v. Astrue, 2008 WL

2550594 at *6 (E.D. Pa. June 26, 2008).

The ALJ must

reference a specific "aspect of SSR 85-15 that relates
[Plaintiff] 's particular nonexertional limitations to the
occupational job base."

Allen, 417 F.3d at 405-06.

This

is because SSR 85-15 is "a ten-page ruling that
specifically addresses the relationship of different mental
impairments to job activity."

Allen, 417 F.3d at 404.

In Allen, the ALJ similarly used Section 204 of the
Grids as a framework for decision-making while relying on
SSR 85-15 to reach a determination of non-disability.

At

the last step of his analysis, he concluded:
The claimant has a college education and a semi
skilled work background.
The claimant is capable of
performing a full range of unskilled work at all
exertional levels. A finding of not disabled was
reached by application of medical-vocational rule 204,
Appendix 2, subpart P, Regulations Part 404, used as a
framework for decisionmaking.
The mental limitations for simple, routine,
repetitive work do not significantly erode the base of
jobs that claimant is capable of performing (SSR 85­
15) .
Allen, 417 F.3d at 400.
13

The Third Circuit held that substantial evidence did
not support the ALJ's determination because his conclusion
"fail [ed] to focus on any of the claimant's work-related
limitations."

Id. at 404.

His conclusion "only

addresse[d] in general fashion the mental limitations for
simple, routine, repetitive work" and did not "reference
any aspect of SSR 85-15 that relate[d] Allen's particular
nonexertional limitations to the occupational job base."
Id. at 405 (internal quotations omitted).

In relying on

SSR 85-15, the ALJ in Allen did not expressly discuss the
claimant's limitations relating to stress and his response
to supervision in determining he had the ability to perform
simple tasks in jobs that exist in significant numbers in
the national economy.

See id. at 407.

Consequently, the

court found it difficult to determine how Allen's "mental
limitations for simple, routine, repetitive work .

. fit

into the various categories or examples set forth in SSR
85-15."

Id. at 406.

In Meyler, the court held that the ALJ's determination was
not supported by substantial evidence because the ALJ similarly
failed to explain why "under SSR 85-15 . . .

[the claimant] 's

nonexertional impairments did not prevent her from meeting the
mental demands of unskilled work."

238 Fed. Appx. at 890.

The

ALJ in Meyler also failed to relate the claimant's "particular
14

mental impairments [] to the categories or examples in SSR 85­
IS."

Id.
Likewise, in Fahy, the ALJ determined that the

claimant retained sufficient attention and concentration
and was able to understand, remember, and follow
instructions~

but was limited to unskilled work.

2550594, at *3.

2008 WL

At Step Five of his analysis, the ALJ

stated in "summary fashion that the claimant's ability to
perform work at all exertional levels is not significantly
compromised by her nonexertional limits.1I

Id. at *6.

The

court found that his determination was not supported by
substantial evidence because he "failed to discuss any of
[the claimant]'s limitations or how SSR 85-15 is probative
of the way in which these limitations impact plaintiff's
ability to work."

Id.

Similarly, the ALJ in the present case concluded that
Plaintiff's mental limitations did not preclude her from
performing unskilled work "requiring the ability to understand,
carry out and remember simple instructions and perform simple
tasks," but remained silent as to exactly what "[Plaintiff] 's
documented mental limitations" were and why they did not prevent
her from meeting the mental demands of unskilled work under SSR
85-15.

(R. 25).

He failed to set forth how her specific mental

15

limitations Ufit into the various categories or examples set
forth in SSR 85-15."1

Allen, 417 F.3d at 406.

Moreover, notwithstanding the fact that SSR 85-15
clearly sets forth three separate requirements in defining
the mental demands of unskilled work, the ALJ completely
failed to discuss Plaintiff's ability to perform the last
two requirements which include the ability to urespond
appropriately to supervision, coworkers, and usual work
situations" and "to deal with changes in a routine work
setting on a sustained basis."

SSR 85-15, 1985 WL 56857,

*4. Despite the fact that Plaintiff was found moderately
limited in her ability to "accept instructions and respond
appropriately to criticism from supervisors" and "respond
appropriately to changes in the work setting" in the State
Agency assessment, discussion regarding Plaintiff's ability
to meet these demands is glaringly absent from the ALJ's
conclusion at the last step of his analysis.

(R.206).

Furthermore, the medical reports from Dr. Uran and Dr.
Meyer diagnosed Plaintiff with panic disorder with
agoraphobia, and included a note that stated that missed
work would be likely due to her agoraphobia.

(R. 181).

I The Court notes that SSR 85-15 does not address Plaintiff's
specific work related limitations with respect to her depression
and panic disorder with agoraphobia and how such limitations
impact her occupational base.

16

While the ALJ's RFC assessment does note Plaintiff's nfear
of leaving her home," "fear of situations," and the fact
that she experiences \\paranoid thoughts," these
limitations, including the likelihood of missed work, are
not discussed at all by the ALJ at Step Five with respect
to how they impact her occupational job base.

The ALJ did

not explain how anything in SSR 85 15 dictated how these
particular mental limitations would affect Plaintiff's
ability to work.

See Meyler, 238 Fed. Appx. at 890 (noting

that the ALJ at the last step in his analysis failed to
"expressly consider [the claimant's] alleged anxiety when
in public places or working near other people

ff

)

•

In finding that Plaintiff's mental debility is not as
significant as alleged, the ALJ relied heavily on the fact
that Plaintiff was able to take college classes and earn a
3.9 GPA.

(R. 23).

Plaintiff, however, must be driven to

her classes by her parents, who must then wait outside her
classroom door in order for her to feel comfortable enough
to attend her courses.

(R. 22).

She attends only one

course on campus, and takes another course online.
22).

(R. 21­

The ALJ failed to account for how these factors

17

affect her ability to perform unskilled work in his
conclusion at Step Five. 2
In sum, the ALJ's citation to SSR 85-15 was conc1usory and
only for the purpose of defining the basic mental demands of
unskilled work.

The ALJ failed to set. forth properly how any

specific aspect of SSR 85-15 addresses Plaintiff's particular
mental limitations.

He did not reference any of the "categories

or examples listed in SSR 85-15, and made no effort to explain
how Plaintiff's specific impairments would impact her ability to
perform unskilled work."

Rivera, 2009 WL 1065920, at *11.

Additionally, his failure to address Plaintiff's ability to
perform two out of the three mental requirements of unskilled
work at the last step, in addition to his failure to discuss how
Plaintiff's panic disorder with agoraphobia affects her
occupational job base, prevents this Court from concluding that
substantial evidence supports his determination that Plaintiff
has the ability to perform simple, routine, and repetitive tasks
in jobs that exist in significant numbers in the national
economy.
Finally, the Court notes that where notice is not given
that an agency intends to "rely on the·ru1es as a substitute for

2The Court notes that the proposition that Plaintiff's moderate
limitations were "already captured" when the ALJ limited her to
unskilled work has been rejected by several courts. See Fahy,
2008 WL 2550594 at *6; see also Rivera, 2009 WL 1065920, at *11.
18

individualized determination", a court must give "close scrutiny
to the ALJ's reliance on a Ruling as satisfying the
Commissioner's burden at Step 5.

Allen, 417 F. 3d at 407 08. 3

II

Against this backdrop, the ALJ's generalized citation to SSR 85­
15 will not suffice.

V.

Conclusion
In short, the record simply does not permit the Court to

determine whether the ALJ's determination that Plaintiff can
perform the mental demands of unskilled work is supported by
substantial evidence, and, accordingly, the Court finds that
substantial evidence does not support the ALJ's decision in this
case.

The Court hereby remands this case to the Commissioner

for reconsideration consistent with this Order.

s
N. Bloch
United States District Judge
ecf:

Counsel of record

The Third Circuit has recognized that "as a matter of fairness,
alerting a claimant to the relevant rule in advance will always
be appropriate." Allen, 417 F. 3d at 407.
3

19