EVERLY v. COMMISSIONER OF SOCIAL SECURITY
Filing
14
MEMORANDUM JUDGMENT ORDER denying 10 Plaintiff's Motion for Summary Judgment and granting 12 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/14/11. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAMON EVERLY,
Plaintiff,
v.
Civil Action No. 10-1028
MICHAEL J. ASTRUE ,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
this
/
'f~day
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
Security
("Commissioner" )
denying
plaintiff's applications for disability insurance benefits (DIB)
and supplemental security income (SSI) under Titles II and
respectively, of the Social Security Act
("Act"),
XVI,
IT IS ORDERED
that the Commissioner's motion for summary judgment (Document No.
12) be, and the same hereby is, granted and plaintiff's motion for
summary judgment
(Document No.
10)
be,
and the same hereby is,
denied.
As the factfinder, an Administrative Law Judge ("ALJII) has an
obligation to weigh all of the facts and evidence of record and
may rej ect or discount
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(Rev. 8/82)
reasons for doing so.
any evidence
if
Plummer v. Apfel,
the
ALJ explains
186 F.3d 422,
429
the
(3d
Cir.1999).
substantial
findings,
Where the ALJ's findings of fact are supported by
evidence,
even
differently.
2001).
if
it
a
reviewing
would
Fargnoli v.
is
bound
decided
have
court
the
factual
Massanari,
247 F.3d 34,
by
38
those
inquiry
(3d Cir.
These well-established principles preclude a reversal or
remand of the ALJ' s decision here because the record contains
substantial
evidence
to
support
the
ALJ's
findings
and
conclusions.
Plaintiff protectively filed his applications for DIB and SSI
on February 21, 2008, alleging a disability onset date of April 6,
2007, due to diabetes, hepatomegaly, chronic obstructive pulmonary
disease (COPD)
1
and sociopathy.
history of left rotator cuff repair t depression
Plaintiffts applications were denied initially.
At plaintiff's request t an ALJ held a hearing on November 23,
2009,
at which plaintiffl
testified.
represented by counsel,
On December 17,
2009,
finding plaintiff not disabled.
appeared and
the ALJ issued a
On June 141
2010 t
decision
the Appeals
Council denied review making the ALJts decision the final decision
of the Commissioner.
Plaintiff was 50 years old at the time of the ALJts decision
and is classified as an individual closely approaching advanced
age
under
416.963(d) .
the
regulations.
20
C.F.R.
§§404.1563(d)
and
Plaintiff has a high school education and has past
relevant work experience as a painter, construction worker t barge
worker
and
security
guard t
but
he
has
not
engaged
in
substantial gainful activity since his alleged onset date.
"AO 72
(Rev. 8/82)
- 2
any
After
reviewing
testimony
from
plaintiff's
plaintiff
and
medical
a
records
vocational
and
expert,
hearing
the
ALJ
concluded that plaintiff is not disabled within the meaning of the
Act.
The ALJ found that although the medical evidence establishes
that plaintiff suffers from the severe impairments of type II
diabetes mellitus,
hepatomegaly,
COPD,
and a
history
left
rotator cuff repair, those impairments, alone or in combination,
do not meet or medically equal the criteria of any impairment
listed at Appendix 1 of 20 C.F.R., Part 404, Subpart P.
The ALJ
also determined that plaintiff's diagnosed mental impairments are
not severe.
The ALJ found that plaintiff retains the residual functional
capacity to perform light work but with certain physical and
environmental restrictions accounting for the limiting effects of
his
impairments.
(R.
14).
Relying
on
the
testimony
of
a
vocational expert, the ALJ concluded that plaintiff retains the·
residual
functional
significant numbers
capacity
to
perform
jobs
in the national economy,
taker, ticket seller and cashier.
existing
in
including ticket
Accordingly, the ALJ concluded
that plaintiff is not disabled within the meaning of the Act.
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
1382c(a) (3) (A).
twelve
months.
42
U. S . C.
§ § 423
(d) (1) (A)
and
The impairment or impairments must be so severe
that the claimant "is not only unable to do his previous work but
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(Rev. 8/82)
- 3
cannot, considering his age, education and work experience, engage
in any other kind of substantial gainful work which exists in the
national
economy
II
42
U.S.C.
§§423 (d) (2) (A)
and
1382c (a) (3) (B) .
The Commissioner has promulgated regulations incorporating a
five-step sequential evaluation process for determining whether a
claimant
is
under
a
disability. 1
20
C.F.R.
§§404.1520
and
416.920; Newell v. Commissioner of Social Security, 347 F.3d 541,
545
(3d Cir.
2003).
disabled at any step,
If the claimant is found disabled or not
the claim need not be reviewed further.
Id.; see Barnhart v. Thomas, 124 S.Ct. 376 (2003).
Here, plaintiff raises two challenges to the ALJ's findings:
(1)
the ALJ erred at step 2 in finding that plaintiff has no
severe mental impairments; and,
(2) the ALJ's residual functional
capacity finding and hypothetical to the vocational expert failed
to account for all of plaintiff's impairments.
satisfied
that
all
of
the
ALJ's
findings
are
The
court is
supported
by
1
The ALJ must determine in sequence: (1) whether the
claimant is currently engaged in substantial gainful activi ty; (2)
if not, whether he has a severe impairment; (3) if so, whether his
impairment meets or equals the criteria listed in 20 C.F.R. Part
404, Subpart P, Appendix 1; (4) if not, whether the claimant's
impairment prevents him from performing his past relevant work;
and (5) if so, whether the claimant can perform any other work
which exists in the national economy, in light of his age,
education, work experience and residual functional capacity. 20
C.F.R. §§404.1520 and 416.920. See also Newell, 347 F.3d at 545
46.
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.
§§404.1520a and 416.920a.
III<.A072
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substantial evidence.
Plaintiff's primary challenge is to the ALJ's step 2 finding
that plaintiff does not have a
severe mental
impairment.
He
contends that the ALJ failed to consider evidence in the record
which
would
support
a
finding
that
plaintiff's
diagnosed
conditions of depression and sociopathy result in more than a
minimal impairment in his ability to perform basic work activities
and therefore are severe under the regulations.
At step two,
impairments
§§404.1520
are
and
the ALJ must determine whether a claimant's
severe
416.920.
as
defined
\\ [An]
by
the
impairment
Act.
or
20
C.F.R.
combination of
impairments is not severe if it does not significantly limit your
physical or mental ability to do basic work activities.
C.F.R. §§404.1520(a) and 416.920(a).
/I
20
The step two inquiry is a de
minimus screening device and, if the evidence presents more than
a slight abnormality, the step two requirement of severity is met
and the sequential evaluation process should continue.
Newell,
347 F.3d at 546.
The plaintiff bears the burden at step 2 of establishing that
an impairment is severe.
See, McCrea v. Commissioner of Social
Security, 370 F.3d 357, 360 (3 rd Cir. 2004).
diagnosis of a
condition is
Moreover, the mere
insufficient in and of
itself to
establish that the condition is severe or disabling, as it is well
settled that disability is not determined merely by the presence
of a diagnosed impairment, but by the effect that the impairment
has upon the individual's ability to perform basic work activities
'AQ72
(Rev. 8/82)
- 5
and to engage in substantial gainful activity.
See Jones v.
Sullivan, 954 F.2d 125, 129 (3d Cir. 1991).
Thus, plaintiff's burden at step 2 was to show not only that
he has been diagnosed with depression and sociopathy,
but also
that those diagnosed impairments result in more than a de minimus
effect on his ability to perform basic work activity.
Substantial
evidence supports the ALJ's determination that this burden was not
met in this case.
Although " [r]easonable doubts on severity are to be resolved
in favor of the claimant," Newell,
little
doubt
sociopathy,
in
this
at most,
case
have a
that
347
F.3d at
plaintiff's
de minimus effect
547,
there is
depression
and
on plaintiff IS
ability to perform basic work activities and, therefore, are not
severe impairments.
The ALJ adequately addressed the relevant evidence relating
to
plaintiff/s
mental
impairments
impairments are not severe.
and
(R. 11-12).
explained
why
those
The court is satisfied
that this finding is supported by substantial evidence as outlined
in the decision.
Specifically, the ALJ observed that although Dr.
Wayne, a consultative psychiatrist, had diagnosed depression and
sociopathy,
(R. 260), he also noted that plaintiff had reported no
previous psychiatric hospitalization for depression and that he
had only been treated with Zoloft once.
Moreover, Dr. Wayne's
mental status examination showed plaintiff to be alert, oriented
and cooperative, and that he was not suicidal or homicidal.
260-61).
Plaintiff was prescribed a three-month supply of Zoloft
"AO 72
(Rev. 8/82)
(R.
- 6
and
was
advised
evaluation.
(R.
to
return
12).
in
three
months
for
a
follow-up
Importantly, Dr. Wayne's evaluation does
not suggest any limitations on plaintiff's ability to perform
basic work activities arising from plaintiff's diagnosed mental
conditions.
In addition to Dr. Wayne's relatively benign findings,
the
ALJ noted that the state agency psychologist found insufficient
evidence of any mental impairment at all.
(R.
246).
In light of
the record evidence, which also showed no history of inpatient
psychiatric hospitalization or any ongoing professional mental
health treatment, the ALJ properly concluded that plaintiff does
not have a severe mental impairment.
Despite the foregoing evidence,
plaintiff contends that a
remand nevertheless is necessary in this case because the ALJ
failed to mention or address in his decision a GAF rating 2 of 50
assigned to plaintiff by Dr.
While it
is
true that
Wayne in his evaluation report.
the ALJ did not
specifically refer to
plaintiff's GAF rating when analyzing Dr.
Wayne's report,
the
court is satisfied that the GAF score has no bearing on the ALJ's
step 2 finding.
First, the use of the GAF scale is not endorsed by the Social
The GAF score considers psychological,
social and
occupational functioning on a hypothetical continuum of mental
health. See American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV) (4 th ed. 1994).
A GAF rating of 41 50 is meant to indicate "serious" symptoms or
"serious" impairment in social and occupational functioning.
A
rating of 51 to 60 is meant to indicate "moderate" symptoms or
"moderate" difficulty in social or occupational functioning. Id.
2
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7
Security Administration because its scores do not have any direct
correlation to the disability requirements and standards of the
Act.
See 65 Fed.Reg. 50746,
any other clinical findings
50764-65
(2000).
Instead, as with
contained in narrative reports of
medical sources, the ALJ is to consider and weigh those findings
under the standards set forth in the regulations for evaluating
medical opinion evidence.
Here,
the
ALJ
20 C.F.R. §§404.1527(d) and 416.927(d).
adhered
to
the
foregoing
considered Dr. Wayne/s report as a whole.
standards
and
In addition, although
a rating of 50 suggests "serious" symptoms, there was nothing else
in Dr. Wayne/s clinical findings or narrative reports indicating
that plaintiff's symptoms
l
even if classified as "serious" at that
specific point in time, have any effect on plaintiff/s ability to
perform basic work activities.
To the extent plaintiff contends that a remand is necessary
because the ALJ failed to mention a psychiatric evaluation report
contained in records from the Allegheny County Correctional Health
Services in May of 2007, when plaintiff was incarcerated for an
incident in which he pulled a knife on a business owner
notes
that
an ALJ is
not
I
the court
required to address every piece of
evidence contained in the record, but only all pertinent evidence.
Burnett
I
220 F.3d at 122 (ALJ is "to review all of the pertinent
medical evidence, explaining any conciliations and rejections.")
Here,
the
report
from
the
Allegheny
County
Correctional
Health Services merely notes a diagnosis of depression and assigns
a GAF score of 50, with no objective findings or written narrative
~A072
(Rev. 8/82)
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which might suggest any limitations affecting plaintiff's ability
to
perform
basic
work
activities.
As
insufficient to establish severity,
a
mere
diagnosis
is
and the GAF score has no
correlation to the severity requirement as explained above, the
report from the Allegheny County Correctional Health Services had
no real bearing on the ALJ's step 2 finding.
It therefore is not
pertinent and the court believes that a remand for the ALJ to
specifically refer
to
that
report
would be
inappropriate and
unnecessary.
The court has reviewed the record as a whole and is satisfied
that the ALJ's step 2 finding that plaintiff's mental impairments
are not severe is supported by substantial evidence.
Plaintiff's other argument is that the ALJ's finding that
plaintiff1s diagnosed mental impairments are not severe resulted
in an incomplete residual
functional
capacity finding and an
inaccurate hypothetical to the vocational expert.
This argument
is without merit.
Plaintiff has not suggested any restrictions arising from a
mental
impairment
that
the ALJ
failed
residual functional capacity finding,
support any such limitations.
submit
rather,
to
the
vocational
the hypothetical
to account
for
in his
and the record does not
Moreover, an ALJ is not required to
expert
posed to
every
diagnosed
impairment,
the vocational expert must
reflect all of the claimant1s impairments and limitations which
are supported by the record.
Johnson v. Commissioner of Social
Security, 529 F.3d 198, 206 (3d. Cir. 2008).
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(Rev 8/82)
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Here,
the ALJ's
residual
functional
capacity finding and
hypothetical question to the vocational expert in fact did account
for all of plaintiff's impairments and limitations supported by
the
record.
The
court
is satisfied that
functional capacity finding,
the ALJ's
residual
and the ALJ's hypothetical to the
vocational expert based on that finding, sufficiently account for
all of plaintiff's limitations supported by the record.
After
carefully and methodically
considering all
medical evidence of record and plaintiff's testimony,
of
the
the ALJ
determined that plaintiff is not disabled within the meaning of
the Act.
substantial
The ALJ's findings and conclusions are supported by
evidence
and
are
not
otherwise
erroneous.
Accordingly, the decision of the Commissioner must be affirmed.
~~
/ Gustave Diamond
United States District Judge
cc: Lindsay Fulton Osterhout, Esq.
521 Cedar Way
Suite 200
Oakmont, PA 15139
Albert Schollaert
Assistant U.S. Attorney
U.S. Post Office & Courthouse
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
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