RUSSELL v. ASTRUE
Filing
12
MEMORANDUM JUDGMENT ORDER granting 7 Plaintiff's Motion for Summary Judgment and denying 10 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security dated 9/10/08 is reversed and this case is remanded to the Commissioner for further proceedings consistent with this opinion. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/26/11. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOLETTE C. RUSSELL,
Plaintiff,
v.
Civil Action No. 10-761
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
this
of
September,
2011,
upon
due
consideration of the parties' cross-motions for summary judgment
pursuant to plaintiff's request for review of the decision of the
Commissioner
of
Social
("Commissioner" )
Security
denying
plaintiff's application for supplemental security income under
Title XVI of the Social Security Act ("Act"), IT IS ORDERED that
plaintiff's motion for summary judgment (Document No.7) be, and
the same hereby is,
summary judgment
denied.
granted and the Commissioner's motion for
(Document No.
10) be,
and the same hereby is,
The Commissioner's decision of September 10, 2008, will
be reversed and this case will be remanded to the Commissioner for
further
proceedings
consistent
with
this
opinion
pursuant
to
sentence 4 of 42 U.S.C. §405(g).
When the
Commissioner determines
that
a
claimant
is
not
IIdisabled" within the meaning of the Act, the findings leading to
~A072
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such a
conclusion must
be
based upon
substantial
evidence.
"Substantial
scintilla.
evidence
has
been defined as
'more
than a
mere
It means such relevant evidence as a reasonable mind
might accept as adequate.
(3d Cir. 1999)
Plummer v. Apfel, 186 F.3d 422, 427
I"
(citation omitted) .
Despite the deference to administrative decisions required by
this
standard,
reviewing
courts
"' retain a
responsibility
to
scrutinize the entire record and to reverse or remand if the
[Commissioner's]
evidence.
decision
is
not
supported
by
substantial
Morales v. Apfel, 225 F.3d 310[ 317 (3d Cir. 2000)
[II
(quoting Smith v. Califano, 637 F.2d 968[ 970 (3d Cir. 1981)).
evaluating
findings,
whether
substantial
"'leniency
[shoulq]
evidence
be
shown
supports
in
an
In
ALJ's
establishing
the
claimant[s disability, and ... the [Commissioner's] responsibility
to rebut
it
[should]
be strictly construed
Barnhart, 326 F.3d 376[ 379 (3d Cir. 2003)
,"
Reefer v.
(quoting Dobrowolsky v.
Califano, 606 F.2d 403[ 407 (3d Cir. 1979)).
Plaintiff protectively filed her pending application for
supplemental security income on August 9[ 2006[ with a disability
onset date of June 30,
2005,
hepatitis C and hypertension.
initially.
19,
2008,
due
to depression[
hepatitis B,
Plaintiff's application was denied
At plaintiff's request an ALJ held a hearing on May
at which plaintiff voluntarily waived her right
representation and appeared and testified pro se.
to
On September
10, 2008, the ALJ issued a decision finding that plaintiff is not
disabled.
On April 16, 2010, the Appeals Council denied review
making the ALJ's decision the final decision of the Commissioner.
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Plaintiff was 51 years old at the time of the ALJ's decision
and is classified as a person closely approaching advanced age
under the regulations.
school
20 C.F.R. §416.963(d).1
education and has
past
phlebotomist and a housekeeper,
relevant
work
She has a high
experience
as
a
but she has not engaged in any
substantial gainful activity since her alleged onset date.
After
reviewing
plaintiff's testimony,
plaintiff's
medical
records
and
hearing
the ALJ concluded that plaintiff is not
disabled wi thin the meaning of
the Act.
The ALJ found that
although the medical evidence establishes that plaintiff suffers
from the severe impairments of depression, obesity, hepatitis B,
hepatitis
C and hypertension,
combination,
those
impairments,
alone
or in
do not meet or equal the criteria of any of the
impairments listed at Appendix 1 to 20 C.F.R., Part 404, Subpart
P.
The ALJ also found that although plaintiff is unable to
perform any of her past relevant work she nevertheless retains the
"residual functional capacity to perform the full range of light
work as defined in 20 C.F.R. 416.967(b)."
Based on plaintiff's
residual functional capacity, age, education and work experience,
the ALJ applied Medical-Vocational Rules 202.20 and 202.13 of
Appendix 2 of 20 C.F.R., Part 404, Subpart P, to direct a finding
of not disabled.
1 Plaintiff was 48 years old on her alleged onset date and
49 years old on the date her application was filed making her a
younger individual under the regulations at those times.
20
C.F.R. §416.963(c).
Cl!!>.A072
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The Act defines "disability" as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment which can be expected to last for a continuous period
of at
least twelve months.
42 U.S.C.
§1382c(a) (3) (A).
The
impairment or impairments must be so severe that the claimant "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
.... " 42 U.S.C. §1382c(a) (3) (B).
The Commissioner has promulgated regulations incorporating a
five-step sequential evaluation process 2 for determining whether
a claimant is under a disability.
20 C.F.R. §416.920j Newell v.
Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003).
If the claimant is found disabled or not disabled at any step, the
claim need not be reviewed further.
Id.; see Barnhart v. Thomas,
124 S.Ct. 376 (2003).
Here, plaintiff raises but a single challenge to the ALJ's
finding of not disabled,
specifically,
that the ALJ's residual
The ALJ must determine in sequence:
(1) whether the
claimant currently is engaged in substantial gainful activity; (2)
if not, whether she has a severe impairment; (3) if so, whether
her impairment meets or equals the criteria listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1;
(4) if not, whether the
claimant I s impairment prevents her from performing her past
relevant work; and, (5) if so, whether the claimant can perform
any other work which exists in the national economy, in light of
her age, education, work experience, and residual functional
capacity.
20 C.F.R. §416.920.
In addition, when there is
evidence of a mental impairment that allegedly prevents a claimant
from working, the Commissioner must follow the procedure for
evaluating mental impairments set forth in the regulations.
Plummer, 186 F.2d at 432; 20 C.F.R. §416.920a.
2
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functional
capacity
finding
failed
to
take
into
account
any
limitations arising from her severe impairment of depression.
Upon review,
the
court does
not
believe
that
the ALJ's
residual functional capacity finding that plaintiff can perform
the "full range of light work" adequately accounts for the ALJ's
finding
at
step
3
that
plaintiff
maintaining
concentration,
Moreover,
plaintiff's
has
persistence
"moderate
"moderate
difficulty
or pace."
difficulty
(R.
15).
maintaining
concentration, persistence or pace" constitutes a non-exertional
limitation which precludes the use of the Grids to dictate a
finding of not disabled and requires advisory testimony from a
vocational
expert,
or
similar
evidence,
to
aid
in
the
determination of whether other jobs exist which plaintiff can
perform.
Accordingly,
this
case
must
be
remanded
to
the
Commissioner for further proceedings.
At step five of the sequential evaluation process, the burden
shifts
to
the
Commissioner to
show that
other jobs exist in
significant numbers in the national economy that the claimant can
perform consistent with her medical impairments, age, education,
past work experience, and residual functional capacity.
§416.920(f)
i
20 C.F.R.
Johnson v. Commissioner of Social security, 529 F.3d
198, 205 (3d. Cir. 2008).
Residual functional capacity is defined
as that which an individual
still
is able to do despite the
limitations caused by her impairments.
20 C.F.R.
§416.945{a)
i
Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001).
In assessing a claimant's residual functional capacity, the
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5
ALJ is required to consider the claimant's ability to meet certain
demands of jobs, such as physical demands l mental demands l sensory
requirements and other functions.
20 C.F.R.
§416.945(a).
In
doing so, the ALJ must consider all relevant evidence, including
medical
records,
examinations,
observations
descriptions
of
made
during
formal
medical
limitations by the claimant and
others and observations of the claimant's limitations by others.
Fargnoli, 247 F.3d at 41i see also SSR 96 8p.
Here, the ALJ concluded that plaintiff retains the "residual
functional capacity to perform the full range of light work as
defined
in
20
C. F. R.
416.967 (b) .
The
II
referenced
regulation
defines "light work" as work which "involves lifting no more than
20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds" or a job that "requires a good deal of
walking or standing, or ... involves sitting most of the time with
some pushing and pulling of arm or leg controls."
20
C.F.R.
416.967 (b) .
Plaintiff argues that the ALJ's residual functional capacity
finding is flawed because it
fails
to account
for his step 2
finding that plaintiff's depression is a severe impairment.
Commissioner
counters
accommodated
any
by
asserting
limitations
that
arising
the
from
ALJ
party
addresses,
plaintiff
has
however,
"moderate
is
the
difficulty
persistence or pace."
'Aon
(Rev. 8/82)
- 6
ALJ's
adequately
plaintiff's
mental impairment by limiting her to unskilled work.
st
maintaining
3
The
severe
What neither
finding
that
concentration,
A "moderate difficulty maintianing concentration, persistence
or pace" very well may impact upon plaintiff's ability to "perform
the full range of light work as defined in 20 C.F.R. 416.967(b)"
as found by the ALJ in his residual functional capacity finding.
20 C.F.R. §416.967(b) defines "light work" purely in exertional
terms related to a claimant's ability to meet the strength demands
for sitting,
pulling.
standing,
walking,
lifting,
carrying,
pushing and
See 20 C.F.R. §416.969(a).
Non-exertional limitations, however, are those that affect a
claimant's
demands.
ability
20 C.F.R.
to
meet
job
demands
§416.969a(a).
other
than
strength
Examples of non-exertional
limitations include, inter alia, difficulty functioning because of
nervousness,
anxiety or depression,
difficulty in maintaining
attention or concentration and difficulty in understanding or
remembering detailed instructions.
the ALJ expressly found at
20 C.F.R. §416.969a(b).
step 3
that
plaintiff has a
Here,
non
exertional limitation, i.e., a "moderate difficulty maintaining
concentration,
functional
persistence or pace."
capacity finding
fails
Yet,
the ALJ's residual
to take
this non-exertional
limitation into account, necessitating a remand.
Having
found that
the ALJ's
residual
functional
capacity
finding failed to account for a specific non-exertional limitation
supported by the record,
this court must also conclude that the
ALJ clearly erred in applying the Medical-Vocational guidelines
("the Grids") to dictate a finding of not disabled at step 5 of
the sequential evaluation process.
'It,A072
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7
The Grids set out various combinations of age,
work experience and residual functional capacity,
education,
and direct a
finding of disabled or nor disabled for each combination.
C.F.R. Part 404, Subpart P, Appendix 2.
See 20
When the four factors in
a claimant's case correspond exactly with the four factors set
forth in the grids, the ALJ must reach the result the grids reach.
Sykes v.
Apfel,
228
F.3d 259,
§416.969j 20 C.F.R.,
However,
263
(3d Cir.
2000)
20
i
C.F.R.
Part 404, Subpart P, Appendix 2, §200.00.
Appendix 2 explicitly states that "the rules are
predicated on an individual's having an impairment which manifests
itself by limitations in meeting the strength requirements of jobs
Appendix 2, §200.00(e).
/I
impairment
strength
rule (s)
or
combination
limitations
reflecting
capabilities,
and
of
impairments
non-exertional
resulting
in
both
limitations
the
individual's maximum residual
the
age,
Thus, "where an individual has an
strength
education
and
work
experience
framework for consideration of how much the
provide
a
individual's work
capability is further diminished in terms of any types of jobs
which would be contraindicated by the non-exertional limitations.
Appendix 2, §200.00(e) (2)
Here,
the ALJ
found
/I
(emphasis added).
that
plaintiff
retains
the
residual
functional capacity to perform the strength demands of jobs at the
However,
light exertional level.
that
plaintiff
has
a
the ALJ also found at step 3
"moderate
concentration, persistence or pace.
/I
difficulty
maintaining
Because plaintiff has a non
exertional limitation which possibly could further diminish her
<\\l,A072
(Rev, 8/82)
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ability
to
perform
the
mental
demands
of
jobs
at
the
light
exertional level, the Grids cannot be used on remand to direct a
finding of disabled or not disabled.
The Commissioner argues that the ALJ adequately accounted for
any non-exertional limitations arising from plaintiff's depression
simply
by
limiting
her
to
unskilled
work 3
and
therefore properly used the Grids to direct a
that
the
ALJ
finding of not
disabled because the Grids take "administrative notice ... of the
numbers
of unskilled jobs
that
exist
economy at the various functional
Astrue,
2009
WL
3241853
(W.D.
throughout
levels.
Pa.,
the national
See
11
Oct.
~
5,
2009) (limiting
Davis v.
plaintiff to unskilled work "fits the precise requirements of the
Grids").
The court respectfully disagrees.
Ini tially, the Commissioner's argument fails to consider that
the ALJ
found at
step
3
that
plaintiff
has
a
specific non
exertional limitation which he did not account for in the residual
functional capacity finding.
explicitly
provide
individual's
having
that
an
As already noted,
"the
rules
impairment
are
which
the regulations
predicated
manifests
on
an
itself
by
limitations in meeting the strength requirements of jobs
they
may
not
be
fully
applicable
where
the
nature
[and]
of
an
individual's impairment does not result in such limitations, e.g.,
3
"Unskilled work" is defined as "work which needs little or
no judgment to do simple duties that can be learned on the job in
a short period of time ... a person can usually learn to do the
job in 30 days, and little specific vocational preparation and
judgment are needed." 20 C.F.R. §416.968(a).
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certain
mental,
§200.00(e)
sensory
or
skin
impairments.
Appendix
II
2,
(emphasis added).
Here,
the ALJ found
i. e. ,
limitation,
concentration,
that plaintiff has
\\moderate
a
persistence
or pace,
a
non-exertional
difficulty
and
If
the
maintaining
Grids
therefore
cannot be used to direct a finding of not disabled but must be
used as a
framework in considering how plaintiff's ability to
perform light
work might
be diminished by her non-exertional
limitation.
Secondly,
the Court of Appeals for the Third Circuit has
addressed on several occasions issues relating to the adequacy of
a residual functional capacity finding where the record contained
evidence that the claimant had \\moderate difficulty maintaining
concentration, persistence or pace," and in these instances the
appellate court approved a residual functional capacity finding
accommodating that difficulty with a
claimant to \\simple, routine tasks."
262
Fed.
Appx.
410,
412-13
restriction limiting the
See,~,
(3d Cir.
2008)
moderate limitations in concentration,
Menkes v. Astrue,
(ALJ accounted for
persistence or pace in
hypothetical by restricting claimant to "simple, routine tasks")
McDonald
v.
2008) (same).
Astrue,
293
Fed.
Appx.
941,
946-47
(3d.
i
Cir.
The ALJ included no such restriction in his residual
functional capacity finding in this case.
Significantly, in neither of the above-cited cases were the
Grids used to direct a
finding of not disabled.
Rather,
the
testimony of a vocational expert was sought to aid the ALJ in
~A072
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determining whether jobs existed in the national economy that the
claimants
could
limitation.
perform
with
this
sort
of
non-exertional
See Menkes, 262 Fed. Appx. at 412 13 (ALJ expressly
inquired of the vocational expert whether a limitation to simple
routine tasks would have "any effect on the unskilled occupational
base");
McDonald,
restricting
293
claimant
Fed.
to
Appx.
"simple,
at
946-47
routine
(hypothetical
tasks"
adequately
accounted for plaintiff's moderate difficulty in concentration,
persistence and pace and vocational expert's response provided
substantial evidence for the ALJ's conclusion).
Moreover,
that
"simple
even in several cases in which courts have held
routine
tasks"
equates
to
"unskilled
work,
/I
a
limitation to "unskilled work" expressly was incorporated into the
residual
functional
capacity
finding
and was
presented
in a
hypothetical to the vocational expert before a determination was
made that jobs existed in the national economy which the claimant
could perform.
Feb.
4,
claimant
See Douglas v. Astrue, 2011 WL 482501 (E.D. Pa.,
2011) (ALJ's hypothetical to vocational expert limiting
to
unskilled work adequately accounted
limitations in concentration,
Barnhart,
functional
2006 WL 1620178
capacity
for
for
persistence or pace)
(E.D.
Pa.,
unskilled
June
light
i
9,2006)
work
moderate
Bovell v.
(residual
presented
to
vocational expert).
Finally, the Third Circuit has held that "in the absence of
a rulemaking establishing the fact of an undiminished occupational
base,
the Commissioner cannot determine that a claimant's non
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exertional impairments do not significantly erode his occupational
base under the medical-vocational guidelines without either taking
additional vocational evidence establishing as much or providing
notice to the claimant of his intention to take official notice of
this
fact
(and providing the claimant with an opportunity to
counter the conclusion)."
neither here.
Sykes, 228 F.3d at 261. 4
The ALJ did
Instead, he simply stated that plaintiff's mental
limitations "do not preclude a significant number of unskilled
jobs" and he did so without the benefit of any vocational evidence
or
even by
holding /
and
referring
to
plaintiff
any
had
specific
"no
rule
opportunity
or
to
regulation
so
counter
the
conclusion. /15
4
The Commissioner subsequently issued an acquiescence
ruling explaining that before denying disability benefits at step
5 when a claimant has non-exertional impairments the Commissioner
must: (1) take or produce vocational evidence such as from a
vocational expert, the DOT or other similar evidence (such as a
learned treatise); or (2) provide notice that the Commissioner
intends to take administrative notice of the fact that a
particular non-exertional limitation does not significantly erode
the occupational job base and allow the claimant the opportunity
to respond. AR 01-1(3) i 2001 WL 65745. While AR 01-1(3) states
it does not apply where the Commissioner relies on a social
security ruling that includes a statement explaining how the
particular non-exertional limitation under consideration affects
a claimant's occupational job base, the ALJ did not rely on any
such social security ruling here.
5
In this regard, the court also notes that plaintiff was
unrepresented at the hearing before the ALJ.
It has long been
established that the ALJ has a heightened duty to develop the
record and to hold full and fair hearings when a claimant is
unrepresented.
Livingston v. Califano, 614 F.2d 342 (3d Cir.
1980); Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979).
Social Security proceedings are inquisitorial, not adversarial
and, "it is the ALJ's duty to investigate the facts and develop
the arguments both for and against granting benefits./1
Sims v.
Apfel, 530 U.S. 103 (2000). Accordingly, the ALJ should have been
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On
remand,
the
ALJ
must
reassess
plaintiff's
residual
functional capacity finding to account for plaintiff's "moderate
difficulty maintaining concentration, persistence or pace."
He
must also reconsider his finding of not disabled at step 5 and, in
doing so,
should seek the
similar evidence,
advice
of
a
vocational
expert,
or
to aid in the determination of whether jobs
exist in the national economy which someone of plaintiff's age,
education,
work
background
and
properly assessed, can perform.
residual
functional
capacity,
AR 01-1(3); Sykes, 228 F.3d 259
at 273.
For the foregoing reasons,
plaintiff's motion for summary
judgment will be granted,
the Commissioner's motion for summary
judgment will be denied,
and this case will be remanded to the
Commissioner for further proceedings consistent with this opinion.
~~
Gustave Diamond
United States District Judge
cc: Kelie C. Schneider, Esq.
Robert Peirce & Associates, P.C.
2500 Gulf Tower
707 Grant Street
Pittsburgh, PA 15219
Lee Karl
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
even more hesitant to use the Grids to direct a finding of not
disabled without the benefit of vocational evidence.
II!t.Aon
(Rev. 8/82)
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