EDDY v. COMMISSIONER OF SOCIAL SECURITY
Filing
11
MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that the 9 Defendant's Motion for Summary Judgment is DENIED, and the 6 Plaintiff's Motion for Summary Judgment is GRANTED only to the extent she seeks a remand for further consideratio n by the Commissioner. The case is hereby REMANDED to the Commissioner of Social Security for further proceedings consistent with the accompanying Memorandum Opinion. The clerk is directed to mark the case closed. Signed by Judge Sean J. McLaughlin on 6/9/2011. (rlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHARLEEN EDDY,
)
)
)
)
)
)
)
)
)
)
Plaintiff
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant
Civil Action No. 10-130
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., District Judge.
I. INTRODUCTION
Sharleen Eddy (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), seeking
review of the final determination of the Commissioner of Social Security (“Defendant” or
“Commissioner”) denying her application for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 401-433, 1381 - 1383f (“Act”). This matter comes before the court on cross motions
for summary judgment. (ECF Nos. 6, 9). The record has been developed at the administrative
level. For the following reasons, the Commissioner‟s motion will be denied and the Plaintiff‟s
motion will be granted only to the extent she seeks a remand for further consideration.
II. PROCEDURAL HISTORY
Plaintiff filed for DIB and SSI with the Social Security Administration September 20,
2007, claiming an inability to work due to disability beginning March 1, 2004. (R. at 98 – 105)1.
Plaintiff was initially denied benefits on February 1, 2008. (R. at 75 – 84). A hearing was
1
Citations to ECF Nos. 4 – 4-3, the Record, hereinafter, “R. at __.”
scheduled for May 27, 2009, and Plaintiff appeared to testify represented by counsel. (R. at 24).
A vocational expert, Edith J. Edwards, also testified. (R. at 24, 94 – 95). The Administrative
Law Judge (“ALJ”) issued her decision denying benefits to Plaintiff on June 16, 2009. (R. at 10 –
23). Plaintiff filed a request for review of the ALJ‟s decision by the Appeals Council, which
request was denied on May 1, 2010, thereby making the decision of the ALJ the final decision of
the Commissioner. (R. at 1 – 5).
Plaintiff filed her Complaint in this court on May 25, 2010. (ECF No. 1). Defendant filed
his Answer on July 28, 2010. (ECF No. 3). Cross motions for summary judgment followed.
III. LEGAL STANDARD
Judicial review of the Commissioner‟s final decisions on disability claims is provided by
statute. 42 U.S.C. §§ 405(g)2 and 1383(c)(3)3. Section 405(g) permits a district court to review
the transcripts and records upon which a determination of the Commissioner is based, and the
court will review the record as a whole. See 5 U.S.C. § 706. When reviewing a decision, the
district court‟s role is limited to determining whether substantial evidence exists in the record to
support an ALJ‟s findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).
2
Section 405(g) provides in pertinent part:
Any individual, after any final decision of the [Commissioner] made after a hearing to which he
was a party, irrespective of the amount in controversy, may obtain a review of such decision by a
civil action ... brought in the district court of the United States for the judicial district in which the
plaintiff resides, or has his principal place of business
42 U.S.C. § 405(g).
3
Section 1383(c)(3) provides in pertinent part:
The final determination of the Commissioner of Social Security after a hearing under paragraph
(1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent
as the Commissioner's final determinations under section 405 of this title.
42 U.S.C. § 1383(c)(3).
2
Substantial 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. Ventura v.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995)(quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). If the ALJ‟s findings of fact are supported by substantial evidence, they are conclusive.
42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. When considering a case, a district court
cannot conduct a de novo review of the Commissioner‟s decision nor re-weigh the evidence of
record; the court can only judge the propriety of the decision in reference to the grounds invoked
by the Commissioner when the decision was rendered. Palmer v. Apfel, 995 F.Supp. 549, 552
(E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196 – 97 (1947). In short, the court can
only test the adequacy of an ALJ‟s decision based upon the rationale explicitly provided by the
ALJ. The court will not affirm a determination by substituting what it considers to be a proper
basis. Chenery, 332 U.S. at 196 – 97. Further, “even where this court acting de novo might have
reached a different conclusion . . . so long as the agency‟s factfinding is supported by substantial
evidence, reviewing courts lack power to reverse either those findings or the reasonable
regulatory interpretations that an agency manifests in the course of making such findings.”
Monsour Medical Center v. Heckler, 806 F.2d 1185, 90-91 (3d. Cir. 1986).
To be eligible for social security benefits under the Act, a claimant must demonstrate that
he cannot engage in substantial gainful activity because of a medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of at least 12 months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986). The ALJ must utilize a
five-step sequential analysis when evaluating whether a claimant has met the requirements for
disability. 20 C.F.R. §§ 404.1520, 416.920.
3
The ALJ must determine: (1) whether the claimant is currently engaged in substantial
gainful activity; (2) if not, whether the claimant has a severe impairment or a combination of
impairments that is severe; (3) whether the medical evidence of the claimant‟s impairment or
combination of impairments meets or equals the criteria listed in 20 C.F.R., Pt. 404, Subpt. P,
Appx. 1; (4) whether the claimant‟s impairments prevent him from performing his past relevant
work; and (5) if the claimant is incapable of performing his past relevant work, whether he can
perform any other work which exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); see Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). If the claimant is determined
to be unable to resume previous employment, the burden shifts to the Commissioner (Step 5) to
prove that, given claimant‟s mental or physical limitations, age, education, and work experience,
he or she is able to perform substantial gainful activity in jobs available in the national economy.
Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).
IV. EVIDENTIARY RECORD
A. General Background
Plaintiff was thirty eight years of age at the time of her administrative hearing. (R. at 27 –
28). Plaintiff completed twelfth grade and had received some post-secondary education in
cosmetology. (R. at 28, 263). Plaintiff was originally from Meadville, Pennsylvania, relocating
to Florida following high school, and returning to the Meadville area in September of 2005. (R.
at 33). She operated a cleaning business in Florida, which she continued in Pennsylvania. (R. at
36).
B. Treatment History
Following her return to Pennsylvania, Plaintiff was diagnosed with and treated for a
number of physical and psychological conditions. Plaintiff claimed to have suffered chronic
4
bronchitis since she was a child, and medical tests in February of 2009 confirmed that Plaintiff
suffered from a history of chronic sinusitis and recurrent bronchitis with moderate airway
obstruction. (R. at 429).
Plaintiff was discovered to have a baseball sized hemorrhagic cyst attached to her left
ovary in 2007. (R. at 200). Plaintiff suffered moderate to extreme abdominal and hip pain that
limited her functioning. (R. at 200, 230, 234, 321). No other abnormalities were found which
could cause this pain. (R. at 196). Plaintiff underwent a mini open laparotomy to remove the
cyst on September 10, 2007. (R. at 238, 242 – 43). The cyst was found to be benign in nature.
(R. at 250). Following the surgery, Plaintiff was diagnosed with endometriosis, and underwent a
series of treatments for this condition. (R. at 200, 242). Conservative treatment involving
Lupron injections into the problem area provided no lasting relief. (R. at 238, 404 – 11).
Plaintiff was also prescribed Xanax for her anxiety while undergoing Lupron treatment. (R. at
404 – 11). Eventually, a hysterectomy was required. (R. at 404). The procedure was completed
in September of 2008 by Vladimir Nikiforouk, M.D. at the Ohio Valley General Hospital in
Pittsburgh. (R. at 393 – 96, 403 – 04). Plaintiff‟s condition was resolved. (R. at 45).
Plaintiff was also diagnosed with degenerative disc disease. (R. at 200). Imaging studies
of Plaintiff‟s back in June of 2007 established the presence of disc herniations at the L4 – L5 and
L5 – S1 levels of Plaintiff‟s spine. (R. at 247, 256 – 57). However, there was no evidence of
central canal stenosis, and only mild right-sided neural foraminal encroachment at the L4 – L5
level. (R. at 247, 256 – 57). Imaging of Plaintiff‟s neck in April of 2008 showed minimal
discogenic changes at the C6 – C7 level of Plaintiff‟s spine, and was otherwise unremarkable.
(R. at 316). Plaintiff claimed to have been suffering from resultant neck, back, and leg pain
since late 2006. (R. at 207, 253). The injuries to Plaintiff‟s back were allegedly attributable to
5
the strenuous nature of Plaintiff‟s cleaning business, culminating in an incident wherein Plaintiff
suffered immobilizing pain after reaching into her car before going to work one morning. (R. at
253). This pain allegedly rendered Plaintiff non-functional for seven days. (R. at 253).
Plaintiff received some treatment at Conneaut Valley Health Center for her back
condition. She frequently phoned her doctor at the Health Center for stronger pain medication.
(R. at 220 – 21, 223, 226 – 27). She complained of neck and back pain that would not resolve.
(R. at 218, 223 – 24). In May of 2007, she appeared at the Health Center in, “obvious,” physical
distress. (R. at 224). From that point on, however, Plaintiff was never noted to be in acute
distress when visiting the Health Center. (R. at 218, 223 – 24). Physical examinations of her
neck in September, October, and December of 2008 all found good range of motion. (R. at 210,
213, 215).
At a July, 2007, physical evaluation with Stuart Anderson, M.D., Plaintiff‟s pain was
noted as being sharp, stabbing, throbbing, aching, and burning in nature. (R. at 207). Plaintiff
suffered this pain fairly constantly. (R. at 207). However, despite some paraspinal tenderness
and resultant limitation in range of motion, Plaintiff walked without a limp, exhibited no
tenderness in her lower extremities, had full range of motion in all joints, had negative straight
leg raising test results, had no instability, and showed normal strength. (R. at 207).
At initial treatment sessions at the Meadville Medical Center‟s pain management clinic in
September of 2007, Plaintiff complained of right-sided neck pain, bilateral lower arm pain, and
bilateral leg pain. (R. at 253). Exercise, stairs, working, temperature extremes, bending, lifting,
sitting, coughing, sneezing, light touch, walking, driving, standing, and stress all exacerbated
Plaintiff‟s pain. (R. at 247). Plaintiff claimed the she had difficulty sleeping as a result of her
injury, and often experienced weakness in her lower back, arms, and legs. (R. at 247). While
6
Plaintiff consistently indicated that her pain was extreme – eight on a pain scale of ten, she did
not report the physical components of her pain in a manner consistent with the degree of pain
alleged. (R. at 253). Also, she stated that with pain medication her pain was only four on a pain
scale of ten. (R. at 247). It was noted that Plaintiff was recommended for pain injections at an
earlier time, but had refused the procedure. (R. at 247).
Plaintiff displayed some pain behavior while at the pain management clinic, and had a
slow, antalgic, but unaided, gait. (R. at 248). Plaintiff‟s spine exhibited normal cervical and
lumbar lordosis, however, and had normal muscle tone and mass. (R. at 248 – 49). She also had
a full range of motion in the cervical and lumbar spine, and her sensation was intact and
symmetrical. (R. at 248 – 49). Only diffuse tenderness was noted around her spine. (R. at 248).
Plaintiff was unwilling to move her lower extremities for objective testing. (R. at 248 – 49).
Lumbar epidural injections were recommended for pain relief, but Plaintiff‟s motive for seeking
pain management was openly questioned in the treatment notes of the pain clinic. (R. at 249).
Plaintiff frequently sought opioid pain medications. (R. at 249). The clinic noted that a drug test
would need to be completed before any such pain medication was prescribed, because substance
abuse was suspected. (R. at 249).
A review of Plaintiff‟s treatment at the pain clinic by Anthony Colantonio, M.D. in
October of 2007 largely mirrored earlier treatment notes. (R. at 245 – 46). He found that
Plaintiff exhibited no focal neurological deficits, and her strength and effort were limited only by
her reported pain. (R. at 246). Dr. Colantonio recommended epidural steroid injections for pain
relief. (R. at 246). He also opined that the depression Plaintiff suffered was likely the result of
her chronic pain. (R. at 246). He found it to be noteworthy that Plaintiff attempted to continue
her cleaning business in spite of her pain. (R. at 246).
7
Lastly, Plaintiff claimed – and it was noted – that her physical pains had taken a
significant toll on her emotional well-being. (R. at 253 – 54). She would become tearful when
describing her pain, increased irritability, anger, and depression. (R. at 254). However, Dr.
Anderson found Plaintiff‟s mood and affect to be normal in 2007. (R. at 207).
Plaintiff was seen by Anthony Ruffa, D.O. at Bay Harbor Family Medicine in Erie,
Pennsylvania beginning in January of 2008 for opiate dependence. (R. at 313 – 15). She had
taken Suboxone and morphine on the street. (R. at 313 – 15). Plaintiff did not wish her
physicians at the Conneaut Valley Health Center to know of her dependence problems. (R. at
313 – 15). She claimed not to be on other medications when she began treatment with Dr. Ruffa.
(R. at 313 – 15).
Plaintiff was found to be well dressed with normal speech, good eye contact, appropriate
affect, good insight and judgment, no thought disorder, and no suicidal ideation. (R. at 313 – 15).
Plaintiff‟s mood was not depressed. (R. at 313 – 15). The flexion and extension of Plaintiff‟s
back were noted to be intact, as was side bending and rotations. (R. at 313 – 15). Toe and hip
raising, and sensation, were also intact. (R. at 313 – 15). Plaintiff was treated by Dr. Ruffa with
Suboxone and MS Contin. (R. at 313 – 15).
Plaintiff visited Tariq Qureshi, M.D. at Stairways Behavioral Health Outpatient Clinic in
March of 2008 due to claimed depression. (R. at 305 – 08). Plaintiff described feelings of
increased anxiety, depression, helplessness, hopelessness, and worthlessness. (R. at 305 – 08).
She described being sexually abused by her uncle as a child. (R. at 305 – 08). Plaintiff did not
suffer from suicidal ideation, however. (R. at 305 – 08).
Dr. Qureshi noted that Plaintiff was taking Suboxone under the care of Dr. Ruffa for
treatment of Vicodin and Percocet addictions. (R. at 305 – 08). Plaintiff claimed she became
8
addicted after buying the medications off of the street when none of her doctors would prescribe
the medications for her. (R. at 305 – 08). Plaintiff demanded throughout her session at Stairways
Behavioral Health that she be given a prescription for Xanax for her anxiety, and was upset when
her requests were denied. (R. at 305 – 08).
Plaintiff was found to be uncooperative and demanding, and exhibited limited insight and
judgment. (R. at 305 – 08). Plaintiff was otherwise alert and oriented, and without delusions,
hallucinations, suicidal ideation, obsessions, compulsions, or phobias. (R. at 305 – 08). Plaintiff
was diagnosed as suffering from a mood disorder and a history of substance abuse. (R. at 305 –
08). Dr. Qureshi assigned Plaintiff a global assessment of functioning4 (“GAF”) score of 65. (R.
at 305 – 08).
Plaintiff often appeared at the Conneaut Valley Health Center for psychological treatment
as well as her physical pain. (R. at 213 – 16). At a September, 2008, exam, she was noted as
being tearful, but also was pleasant, cooperative, alert, and oriented. (R. at 215). She demanded
Xanax for her anxiety after her gynecologist no longer felt comfortable providing Plaintiff with
the medication. (R. at 215). Plaintiff was also tearful at an October, 2008, exam. (R. at 213). In
a December, 2008, exam, Plaintiff also asked the Health Center to prescribe her the pain killer
MS Contin after Dr. Ruffa would no longer provide it to her. (R. at 210).
4
The Global Assessment of Functioning Scale (“GAF”) assesses an individual's psychological, social and
occupational functioning with a score of 1 being the lowest and a score of 100 being the highest. The GAF score
considers “psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness.” American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR)
34 (4th ed. 2000). An individual with a GAF score of 60 may have “[m]oderate symptoms” or “moderate difficulty
in social, occupational, or school functioning;” of 50 may have “[s]erious symptoms (e.g., suicidal ideation ....)” or
“impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job);” of 40 may have
“[s]ome impairment in reality testing or communication” or “major impairment in several areas, such as work or
school, family relations, judgment, thinking or mood”; of 30 may have behavior “considerably influenced by
delusions or hallucinations” or “serious impairment in communication or judgment (e.g., ... suicidal preoccupation)”
or “inability to function in almost all areas ...; of 20 “[s]ome danger of hurting self or others ... or occasionally fails
to maintain minimal personal hygiene ... or gross impairment in communication....” Id.
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C. Medical Evaluations
On January 1, 2008, Plaintiff underwent a clinical psychological disability evaluation
with Michael Mercatoris, Ph.D. for the Bureau of Disability Determination. (R. at 262 – 69). In
his evaluation, Dr. Mercatoris noted that Plaintiff was well dressed, with good grooming and
hygiene. (R. at 262 – 69).
Plaintiff was noted to be completely cooperative during the
evaluation, made good eye contact, and was considered to be reasonably reliable. (R. at 262 –
69). Plaintiff exhibited no unusual mannerisms, her posture and gait was normal, her motor
behavior was normal, and her speech was normal. (R. at 262 – 69). Plaintiff showed a full range
of expression and her affect was appropriate. (R. at 262 – 69).
Plaintiff explained to Dr. Mercatoris that she suffered from endometriosis and
deterioration of her spine. (R. at 262 – 69). She complained of anxiety, depression, tearfulness,
insomnia, panic attacks, and some suicidal thoughts – though, she denied being suicidal. (R. at
262 – 69). Plaintiff‟s abstract thinking was fair. (R. at 262 – 69). Dr. Mercatoris diagnosed
major depression, panic disorder with agoraphobia, post-traumatic stress disorder (“PTSD”), and
some mild obsessive compulsive symptoms. (R. at 262 – 69). Plaintiff‟s prognosis was guarded.
(R. at 262 – 69).
It was noted that Plaintiff was capable of cleaning, and – in fact – that she cleaned houses
six to ten hours a week. (R. at 262 – 69). Plaintiff was capable of shopping, cooking, and driving
independently, could pay her bills independently, and could care for her personal hygiene and
appearance. (R. at 262 – 69). Plaintiff got along with her boyfriend and neighbors, though she
would not initiate social contact when feeling depressed. (R. at 262 – 69). She had no interest in
group activities, but her social maturity was, “all right.” (R. at 262 – 69). Plaintiff got along well
with co-workers, but avoided the public when feeling depressed. (R. at 262 – 69).
10
In terms of concentration and task completion, Plaintiff was found capable of carrying
out simple instructions in simple work situations. (R. at 262 – 69). She could complete a task
from beginning to end, sustain a routine, and make independent decisions. (R. at 262 – 69).
Performing at a consistent pace would be precluded because of her physical pain. (R. at 262 –
69). In social situations, Plaintiff could adapt to simple changes in her work situation, though
she may have problems coping with significant stress. (R. at 262 – 69). Plaintiff was either not
limited, or only slightly or moderately limited, in all areas of functioning. (R. at 262 – 69).
A Psychiatric Review Technique completed by Edward Zuckerman, Ph.D. on January 11,
2008 found Plaintiff to suffer from depressive disorder, and panic disorder with agoraphobia. (R.
at 270 – 82). However, Plaintiff was not limited in her activities of daily living, was mildly
limited in maintaining social functioning, concentration, persistence, and pace, and showed no
evidence of episodes of decompensation. (R. at 270 – 82). The findings of Dr. Mercatoris were
given great weight. (R. at 270 – 82).
On January 15, 2008, Michael Niemiec, D.O. completed a physical residual functional
capacity (“RFC”) assessment of Plaintiff. (R. at 283 – 89). Based upon the medical records
available at the time, Dr. Niemiec concluded that Plaintiff was capable of occasionally lifting up
to twenty pounds, frequently lifting ten pounds, standing and walking approximately six hours of
an eight hour workday, sitting approximately six hours, unlimited pushing and pulling, and
occasional climbing, balancing, stooping, kneeling, crouching, and crawling. (R. at 283 – 89).
Plaintiff was not otherwise functionally limited. (R. at 283 – 89).
Dr. Niemiec diagnosed Plaintiff with degenerative disc disease of the lumbar spine and
endometriosis. (R. at 283 – 89). He further found that Plaintiff‟s activities of daily living were
not significantly limited, and that the various forms of treatment that Plaintiff had received for
11
her physical conditions were generally effective in controlling her symptoms. (R. at 283 – 89).
As such, Plaintiff was determined to be only partially credible. (R. at 283 – 89).
Vocational Counselor John Topalanonik, M.S. wrote a Vocational Report with respect to
Plaintiff‟s functional capabilities on March 12, 2008. (R. at 290 – 95).
Mr. Topalanonik
reviewed the medical record available at that time and concluded that Plaintiff was unable to
perform any substantial gainful activity, and further, that she met the requirements for disability
under listings 12.04 (Affective Disorders) and 12.06 (Anxiety Related Disorders) in 20 C.F.R.,
Pt. 404, Subpt. P, Appx. 1. (R. at 290 – 95). Mr. Topalanonik determined that the objective
evidence within the medical record established that Plaintiff suffered from major depressive
disorder, panic disorder with agoraphobia, PTSD, and obsessive compulsive disorder (“OCD”).
(R. at 290 – 95).
The symptoms Plaintiff experienced as a result of these disorders included consistent
agoraphobia, hypervigilence, anxiety, depression, frequent tearfulness, tenseness, sleep
disturbance, suicidal ideation, panic attacks, poor concentration, chronic pain, and reclusiveness.
(R. at 290 – 95). Plaintiff was also the victim of childhood sexual abuse. (R. at 290 – 95). Mr.
Topalanonik determined that Plaintiff was markedly limited in her ability to maintain a
consistent pace, regular attendance, and concentration. (R. at 290 – 95). He specifically cited Dr.
Mercatoris‟s evaluation of Plaintiff as establishing marked mental and functional impairments
consistent with Mr. Topalanonik‟s conclusion that Plaintiff was unable to work. (R. at 290 – 95).
Psychologists Martin Meyer, Ph.D. and Julie Uran, Ph.D. performed a psychological
evaluation of Plaintiff on November 20, 2008. (R. at 417 – 21). They noted that Plaintiff felt she
would have difficulty maintaining a job because her pain and anxiety would cause her to, “snap.”
(R. at 417 – 21). Plaintiff also reported rage episodes in which she became verbally aggressive
12
and threw objects. (R. at 417 – 21). Plaintiff claimed that she had visual hallucinations, suicidal
ideation, paranoia, and obsessive thoughts of orderliness. (R. at 417 – 21). She additionally
alleged that she was sexually abused as a child, and that she was, “mentally abused,” by most of
her doctors. (R. at 417 – 21). Depression, anxiety, lack of concentration, insomnia, and chronic
pain were also described. (R. at 417 – 21).
Drs. Meyer and Uran noted that Plaintiff had never received any mental health counseling
in the past. (R. at 417 – 21). She drove herself to the evaluation independently, was cooperative,
was properly attired, and exhibited good hygiene. (R. at 417 – 21). Plaintiff only made minimal
eye contact, and did intimate that she was experiencing some pain. (R. at 417 – 21). She
ambulated slowly and with a perceptible limp. (R. at 417 – 21). She also stood during a portion
of her evaluation. (R. at 417 – 21).
Plaintiff did cry during her evaluation, but exhibited spontaneous and coherent speech,
reported no perceptual disturbances of any significance, had normal and relevant thought
process, appeared to be of average intelligence, had an adequate vocabulary, was alert and
oriented, showed appropriate social judgment, was motivated, and was a good narrator of her
personal history. (R. at 417 – 21). However, Plaintiff‟s critical thinking and mental flexibility
were limited, her immediate memory was poor, she had some degree of difficulty with impulse
control, and her insight was limited. (R. at 417 – 21).
Plaintiff‟s prognosis was considered fair to poor. (R. at 417 – 21). Her depression and
anxiety were found to be in the severe range. (R. at 417 – 21). Her functional limitations
included her ability to learn, her physical mobility, her history of recurrent job firings, her
depression, anxiety, and agoraphobia – which could lead to missed work, and her anger. (R. at
417 – 21). She was recommended for social security disability, cognitive behavioral therapy,
13
and psychiatric medication. (R. at 417 – 21). Plaintiff was diagnosed with major depressive
disorder, panic disorder with agoraphobia, and social phobia. (R. at 417 – 21). Plaintiff was
given a GAF score of 50. (R. at 417 – 21).
D. Administrative Hearing
At her hearing, Plaintiff testified that her sources of income included welfare benefits and
a weekly fee from the sole remaining client of her cleaning business. (R. at 29). The income
generated from the cleaning business was approximately $120.00 per week, of which she
received only half because she hired outside help to do the cleaning for her. (R. at 29). Her
inability to do the cleaning independently – beginning in March of 2004 – had allegedly cost
Plaintiff all but one of her business‟s clients. (R. at 29 - 30). Plaintiff was able to do some of the
cleaning work after 2004, but her pain eventually forced her to stop working altogether. (R. at 30
– 33). Prior to her claimed disability onset date, Plaintiff testified that she worked approximately
thirty hours a week at her business. (R. at 35).
Plaintiff claimed that she first began to experience functional limitation while she was
running a cleaning business in Florida, approximately one to two years prior to moving to
Meadville. (R. at 36). She claimed that the strain of lifting vacuum cleaners and other equipment
up and down stairs at various work sites negatively affected her back. (R. at 36). Her back had
deteriorated to the point that one day she had so much pain she could not get herself out of her
car, but required the help of some passersby. (R. at 37).
On a typical day, Plaintiff would rise at approximately 8:30 or 9:00 a.m. (R. at 38). She
alleged experiencing difficulty getting out of bed and moving around until her pain medication
kicked in. (R. at 38). She would then make herself breakfast and do household chores as
necessary. (R. at 38). She might also sit and read or pot/ tend to her plants. (R. at 38). Plaintiff
14
testified that she maintained her driver‟s license and drove independently several times a week.
(R. at 28 – 29). Plaintiff did her own shopping. (R. at 38). Plaintiff sometimes prepared lunch,
and also made her own dinner. (R. at 38). When her pain was worse, she would often only eat
breakfast cereal for dinner. (R. at 38).
Plaintiff did not often engage in social activities outside of her home, and would only
visit with friends once or twice a month. (R. at 39). In the evening she would read, watch
television, and talk on the phone. (R. at 39). Plaintiff typically went to bed at around 11:00 or
11:30 p.m. (R. at 39). Plaintiff claimed to have difficulty falling asleep due to her back pain. (R.
at 39).
Physically, Plaintiff considered her inability to stand, sit, or walk without significant pain
to be her greatest barrier to maintaining full time employment. (R. at 40). The pain was worst on
the right side of her neck, her lower back, and both of her legs. (R. at 40). Increased physical
activity intensified Plaintiff‟s pain. (R. at 40).
Plaintiff took pain medication, and would
administer ice packs and heating pads to help treat her discomfort. (R. at 40). Medication did
not, allegedly, relieve Plaintiff‟s pain. (R. at 50). When she was aware that she would be
engaging in prolonged activity, Plaintiff would also wear a back brace. (R. at 40 – 41).
Plaintiff‟s doctors had not suggested more aggressive treatment methods. (R. at 41). Plaintiff
claimed to be tired and in pain most mornings despite her treatment, and she spent much of her
day in a reclining chair. (R. at 47). Sitting for too long a period of time also created pain. (R. at
48). If Plaintiff walked two city blocks, she would be exhausted and in a great deal of pain. (R.
at 49 – 50). Bending and twisting also allegedly presented Plaintiff with significant difficulty.
(R. at 49). Approximately half of the days of any given week, Plaintiff claimed to be unable to
15
do much more than sit in her home. (R. at 47 – 48). She was forced to give up exercising,
bicycling, and water skiing due to pain. (R. at 50 – 51).
Plaintiff explained that she suffered from chronic bronchial infections as a complication
arising from the ingestion of kerosene as a young child. (R. at 41). The lung damage suffered
frequently required Plaintiff to take courses of antibiotics and steroids for relief from persistent
infections. (R. at 41). Plaintiff also mentioned that she had suffered from the ill-effects of an
ovarian cyst, but that two surgical interventions for the treatment of endometriosis subsequently
resolved all pain associated with that condition. (R. at 45).
Psychologically, Plaintiff believed that her anxiety and depression precluded her from
maintaining full-time employment. (R. at 42). Plaintiff described suffering from panic attacks
when around large numbers of people in public places. (R. at 42). Increases in stress also
triggered the attacks. (R. at 42). Plaintiff‟s depression was an everyday struggle, and was largely
the result of Plaintiff‟s constant pain and resultant functional limitation. (R. at 43). Plaintiff
received medication for both her anxiety and depression. (R. at 42 – 43, 46). However, Plaintiff
had difficulty concentrating. (R. at 50). She also experienced frequent crying spells. (R. at 51).
Plaintiff claimed that she had trouble getting along with other people, and that she often became
angry and confrontational. (R. at 51). Plaintiff‟s inability to work well with others has allegedly
been the reason for terminations from past employment. (R. at 52).
Following Plaintiff‟s testimony, the ALJ asked the vocational expert what jobs would be
available to a hypothetical person of Plaintiff‟s age, education, and work experience, and who
was limited to performing sedentary work allowing alternating between seated and standing
positions, and limited to performing simple, repetitive tasks, without close interaction with the
general public or exposure to excessive dust, smoke, fumes, or lung irritants. (R. at 53 – 54).
16
The vocational expert replied that such a person would be capable of working as an, “office
clerk,” with 137,000 positions available in the national economy, or, “surveillance system
monitor,” with 83,000 positions available. (R. at 54).
The ALJ then inquired as to whether mild to moderate pain and depression – which
would not significantly interfere with the hypothetical person‟s ability to maintain concentration
or complete tasks – would affect the availability of the jobs mentioned. (R. at 54).
The
vocational expert answered by stating that the jobs would still be available. (R. at 54). However,
moderate to severe pain and depression which would frequently prevent or hinder the
hypothetical person‟s ability to concentrate, complete tasks, or maintain a workstation for a
prolonged period would eliminate all jobs. (R. at 54). Further, if the hypothetical person suffered
limitations such as those described by Plaintiff during her testimony, no jobs would be available
to that person. (R. at 54).
V. DISCUSSION
In his decision, the ALJ found Plaintiff to suffer from severe impairments in the way of
lumbrosacral disc herniation and degenerative disc disease, bronchitis, endometriosis,
depression, and anxiety. (R. at 15). As a result, Plaintiff was determined to be limited to
sedentary work allowing her to sit and stand, as necessary, to avoid close interaction with the
public, to avoid exposure to excessive lung irritants, and to engage in no more than simple,
repetitive tasks. (R. at 17). Despite these functional limitations, and based upon the testimony of
the vocational expert at Plaintiff‟s administrative hearing, job opportunities existed in significant
numbers in the national economy for a person so limited. (R. at 53 – 55). Plaintiff was,
therefore, not entitled to SSI or DIB. (R. at 23).
17
In her motion, Plaintiff objects to this determination by the ALJ, arguing that the ALJ
erred in formulating his RFC assessment and hypothetical question to the vocational expert, by
failing to give proper consideration to the opinions of various medical sources in the record, and
in discrediting Plaintiff‟s subjective complaints by overstating the true extent of her daily
activities. (ECF No. 8 at 6 – 17).
When rendering a decision, an ALJ must provide sufficient explanation of his or her final
determination to provide a reviewing court with the benefit of the factual basis underlying the
ultimate disability finding. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) (citing S.E.C. v.
Chenery Corp., 318 U.S. 80, 94 (1943)). The ALJ need only discuss the most pertinent, relevant
evidence bearing upon a claimant‟s disability status, but must provide sufficient discussion to
allow the court to determine whether any rejection of potentially pertinent, relevant evidence was
proper. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 203 – 04 (3d Cir. 2008) (citing Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000); Cotter, 642 F.2d at 706). The ALJ did
not fully meet his obligations in the present case.
Plaintiff first argues that the ALJ‟s RFC and hypothetical to the vocational expert was
insufficient because the ALJ was allegedly vague in describing Plaintiff‟s sit/ stand option. (ECF
No. 8 at 7). In his hypothetical at Plaintiff‟s administrative hearing, the ALJ advised the
vocational expert that any available employment would require the ability to, “periodically be
able to alternate between sitting and standing.” (R. at 54). The ALJ‟s RFC provided that
Plaintiff must be able to, “sit or stand as necessary.” (R. at 17). It is the Plaintiff‟s contention
that this was not adequate under S.S.R. 83-125 and S.S.R. 96-9p6 to convey Plaintiff‟s true
functional limitation. (ECF No. 8 at 7).
5
“Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will.” S.S.R.
83-12.
18
RFC assessments and hypothetical questions must be a reflection of all of a claimant‟s
credibly established impairments. Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004).
Moreover, an RFC assessment or hypothetical question should be specific enough to adequately
convey a claimant‟s functional limitations. Id. at 552, 555 – 56. However, when the evidence on
record persuades an ALJ to conclude that a particular impairment is so minimal or negligible that
it would not limit a claimant‟s functional capacity beyond any accommodations already provided
in the RFC assessment or hypothetical, greater specificity is not required. Id. at 555 – 56; Galvin
v. Comm’r Soc. Sec., 2009 WL 2177216, *10 (W.D.Pa. July 22, 2009); Christner v. Astrue, 2009
WL 186010, *9 (W.D.Pa. January 27, 2009).
Here, there was no evidence that established Plaintiff‟s exact limitations with respect to
sitting and standing. There was, however, the physical RFC assessment completed by Dr.
Niemiec which concluded that Plaintiff was capable of sitting six hours of an eight hour workday
and standing or walking six hours. (R. at 283 – 89). No evidence is provided by Plaintiff that
contradicts this finding. As argued by Plaintiff, sedentary work often requires sitting for six
hours out of an eight hour workday. (ECF No. 8 at 7). The evidence on record established that
Plaintiff was capable of meeting this requirement, and the Court, therefore, can find no reason
why the ALJ‟s RFC assessment or hypothetical required greater specificity to properly
accommodate this functional limitation.
Plaintiff further argues that the ALJ‟s RFC assessment was flawed because it did not
specifically list Drs. Meyer and Uran‟s findings regarding Plaintiff‟s irritability and attention
6
“„[S]edentary work‟ represents a significantly restricted range of work . . . Although a sedentary job is defined as
one that 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.
„Occasionally‟ means occurring from very little up to one-third of the time, and would generally total no more than
about 2 hours of an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour workday . . . The RFC
assessment must be specific as to the frequency of the individual‟s need to alternate sitting and standing.” S.S.R. 969p.
19
deficits. (ECF No. 8 at 8 – 10). However, it is clear that the ALJ was justified in not including
such limitations.
Earlier findings by Drs. Meyer and Uran indicated that Plaintiff was
cooperative, exhibited normal thought and speech, was of average intelligence, and showed
appropriate social judgment – mitigating the severity of her limitations. (R. at 20, 262 – 69, 417
– 21). Further, Drs. Meyer and Uran never indicated the severity of the limitations listed in their
assessment, or the impact upon Plaintiff‟s ability to engage in substantial gainful employment.
(R. at 417 – 21). As a result, the Court is not persuaded that the ALJ‟s RFC assessment or
hypothetical were inadequate in this respect.
Plaintiff‟s second argument is that the ALJ failed to appropriately weigh the medical
opinions of her treating and examining sources. (ECF No. 8 at 11). With respect to treating
physicians, the Court of Appeals for the Third Circuit has held that their opinions may be entitled
to great weight – considered conclusive unless directly contradicted by evidence in a claimant=s
medical record – particularly where the physician=s findings are based upon Acontinuing
observation of the patient=s condition over a prolonged period of time.@ Brownawell v.
Commissioner of Social Security, 554 F.3d 352, 355 (3d Cir. 2008); Plummer v. Apfel, 186 F.3d
422, 429 (3d Cir. 1999) (citing Rocco v. Heckler 826 F.2d 1348, 1350 (3d Cir. 1987)). However,
a showing of contradictory evidence and an accompanying explanation will allow an ALJ to
reject a treating physician=s opinion outright, or accord it less weight. Id.
In such a case, it is expected that the ALJ will be as Acomprehensive and analytical as
feasible.@ Cotter, 642 F.2d at 705. The explanation should allow a reviewing court the ability to
determine if Asignificant probative evidence was not credited or simply ignored.@ Fargnoli, 247
F.3d at 42. The ALJ Acannot reject evidence for no reason or for the wrong reason.@ Morales v.
Apfel, 255 F.3d 310, 317 (3d Cir. 2000) (citing Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.
20
1993)). Moreover, the ALJ Ashould not substitute his lay opinion for the medical opinion of
experts,@ or engage in Apure speculation@ unsupported by the record. Id. at 318-19; Daring v.
Heckler, 727 F.2d 64, 70 (3d Cir. 1984).
Here, a reading of the ALJ‟s opinion shows that the ALJ considered much of the
evidence provided by Dr. Ramirez, Dr. Anderson, and Dr. Colantonio7, clearly giving them
significant weight. (R. at 17 – 21). Nowhere does Plaintiff point to objective medical evidence
recorded by these doctors that the ALJ rejected outright. Further, it must be noted that none of
Plaintiff‟s treating physicians conducted functional capacity assessments or indicated that
Plaintiff would be functionally limited in, or precluded from, full-time employment. Plaintiff
fails to explain what further analysis was required by the ALJ. Here, the ALJ gave Plaintiff‟s
treating physicians adequate consideration.
Plaintiff further objects to the significant weight the ALJ explicitly gave to the opinions
of Dr. Mercatoris, Dr. Zuckerman, and Dr. Niemiec, as opposed to the lesser weight attributed to
the opinions of Dr. Meyer, Dr. Urban, and Mr. Topalanonik. (ECF No. 8 at 12 – 15). Plaintiff
specifically attacks the ALJ‟s reliance upon the evaluation of Dr. Niemiec in several respects.
(ECF No 8 at 13). First, Plaintiff attacks the value of the assessment because Dr. Niemiec‟s
evaluation required only checking boxes. (ECF No. 8 at 12).
Dr. Niemiec‟s assessment,
however, differs from the type of evaluation discussed in Mason v. Shalala, 994 F.2d 1058, 1065
– 66 (3d Cir. 1993) (citing Brewster v. Heckler, 768 F.2d 581, 585 (3d Cir. 1986)), where the
court described RFC assessments unaccompanied by narrative explanations as weak evidence, at
best. Here, Dr. Niemiec presented a comprehensive list of the medical records consulted and the
7
In her argument, Plaintiff includes, “Ms. Gushard (psychologist),” amongst the list of physicians whose opinions
were entitled to deference by the ALJ in his opinion. (ECF No. 8 at 11). Ms. Gushard, however, is not a
psychologist or doctor, and does not appear to have a significant treatment history with Plaintiff beyond a September
4, 2007, Psychosocial Evaluation. (R. at 253 – 55).
21
objective findings therein which lent support for his conclusions regarding Plaintiff‟s physical
limitations. (R. at 283 – 89). Moreover, while giving significant weight to the findings of Dr.
Niemiec, the ALJ did not adopt his findings or give the findings controlling weight, instead
discussing the findings in the context of Dr. Mercatoris and Dr. Zuckerman‟s opinions, as well as
the supporting evidence on record. I find no error in the ALJ‟s treatment of Dr. Niemiec‟s
opinion in this regard.
Plaintiff also argues that Dr. Niemiec‟s opinion was of limited value because it predated
Plaintiff‟s initial disability determination and, therefore, he would not have had the entire record
available for his review – specifically, the evidence of Plaintiff‟s hysterectomy and related
physical difficulties. (ECF No. 8 at 13 – 14). However, there is no evidence that Dr. Niemiec‟s
evaluation was not a valid assessment of Plaintiff‟s capabilities, at the time of completion, and
further, no evidence was put forth by Plaintiff which would suggest that the assessment of
Plaintiff‟s functional capabilities was no longer valid due to subsequent physical developments.
While it is true that Plaintiff had endometriosis requiring a hysterectomy in 2008, which Dr.
Niemiec could not have considered, the record indicated that Plaintiff saw improvement in her
endometriosis, until August of 2008, with Lupron injections. (R. at 405 – 11). Additionally,
following her hysterectomy, Plaintiff testified at her hearing that her symptoms relating to her
endometriosis had resolved. (R. at 45).
As such, the Court does not find that Dr. Niemiec‟s
decision was given undue weight.
Plaintiff fares better, however, with respect to her remaining arguments. Plaintiff argues
that the ALJ erred in failing to adequately discuss discrepancies between his RFC assessment
and those of Dr. Zuckerman and Dr. Mercatoris. (ECF No. 8 at 14 – 15). The ALJ is required to
provide some level of explanation for his failure to accept limitations findings by these doctors,
22
and did not do so. See Cotter, 642 F.2d at 704 – 705 (wherein the court held that the ALJ has a
duty to evaluate all relevant evidence, and failure to explain the weight given to probative
evidence, and the underlying factual basis for this weight, deprives the court of the ability to
determine whether significant evidence was credited properly or simply ignored).
Dr.
Mercatoris‟s finding that Plaintiff was precluded from performing at a consistent pace was
neither discussed nor accommodated in the ALJ‟s RFC assessment. Neither were his moderate
limitations findings with respect to responding to work pressures and changes in routine work
settings, and interacting with supervisors and co-workers, so discussed or included. (ECF No. 8
at 8). Consequently, a remand is required so that the ALJ can address this evidence consistent
with the dictates of Cotter.
Plaintiff‟s final objection to the ALJ‟s determination concerns his use of Plaintiff‟s
activities of daily living to discredit her allegations of limitation. The ALJ erred, here, by
misstating her actual level of activity by relying primarily upon Dr. Mercatoris‟s report which no
longer reflected Plaintiff‟s most current activity level with respect to working. The ALJ failed to
properly characterize Plaintiff‟s work situation and her alleged decline in hours worked over
time. The ALJ also erred when he misquoted Dr. Niemiec. (R. at 19). Dr. Niemiec stated only
that Plaintiff‟s activities were not significantly limited – he made no specific findings regarding
what activities were and were not affected. (R. at 289). On remand, therefore, the ALJ should
reassess the nature of the Plaintiff‟s daily activities.
VI. CONCLUSION
Based upon the foregoing, the Defendant‟s Motion for Summary Judgment will be denied
and the Plaintiff‟s Motion for Summary Judgment will be granted only to the extent she seeks a
23
remand for further consideration. The matter will be remanded to the Commissioner for further
proceedings.8 An appropriate Order follows.
8
The ALJ is directed to reopen the record and allow the parties to be heard via submissions or otherwise as to the
issue addressed in this Memorandum Opinion. See Thomas v. Comm’r of Soc. Sec., 625 F.3d 800-01 (3rd Cir. 2010).
24
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHARLEEN EDDY,
Plaintiff
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant
)
)
)
)
)
)
)
)
)
)
Civil Action No. 10-130
ORDER
AND NOW, this 9th day of June, 2011, for the reasons stated in the accompanying
Memorandum Opinion,
IT IS HEREBY ORDERED that the Defendant‟s Motion for Summary Judgment [ECF
No. 9] is DENIED, and the Plaintiff‟s Motion for Summary Judgment [ECF No. 6] is
GRANTED only to the extent she seeks a remand for further consideration by the
Commissioner. The case is hereby REMANDED to the Commissioner of Social Security for
further proceedings consistent with the accompanying Memorandum Opinion.
The clerk is hereby directed to mark the case closed.
s/ Sean J. McLaughlin
United States District Judge
cm: All parties of record.
25
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