CRIBBS v. COMMISSIONER OF SOCIAL SECURITY
Filing
14
MEMORANDUM OPINION re: 10 MOTION for Summary Judgment filed by CINDY L. CRIBBS and 12 MOTION for Summary Judgment filed by COMMISSIONER OF SOCIAL SECURITY. Signed by Judge William L. Standish on 12/07/11. (md)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CINDY L. CRIBBS
)
)
)
)
I
Plaintiff
l
vs.
)
Civil Action No. 10-1561
)
)
)
)
)
)
MICHAEL J. ASTRUE
COMMISSIONER OF SOCIAL
SECURITY
I
I
Defendant.
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff
l
Cindy L. Cribbs
decision of Defendant
Commissioner
ll
)
I
I
seeks judicial review of a
I
Commissioner of Social Security ("the
denying her applications for disability
insurance benefits
(\\DIBII)
and supplemental security income
("SSP') under Titles II and XVII respectively I of the Social
Security Act
l
42 U.S.C. §§ 401-433 and §§ 1381-1383f. 1
before the Court are the parties
l
cross-motions for summary
judgment pursuant to Fed.R.Civ.P. 56.
below
l
Presently
For the reasons set forth
Plaintiff/s motion for summary judgment will be granted
insofar as this Social Security case will be remanded for
The Social Security system provides two types of benefits based on an
inability to engage in substantial gainful activity: the first type, DIB,
provides benefits to disabled individuals who have paid into the Social
Security system through past employment, and the second type, SSl, provides
benefits to disabled individuals who meet low-income requirements regardless
of whether the individuals have ever worked or paid into the Social Security
system. With respect to Plaintiff's claim for DIB, her earnings record shows
that she has acquired sufficient quarters of coverage to remain insured
through December 31, 2011.
(R. 12).
1
1
further proceedings, and the Commissioner's cross-motion for
summary judgment will be denied.
II. PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on April 4,
2008, alleging disability since January 15, 2007 due to bipolar
II disorder,2 severe back pain, asthma and migraine headaches.
(R. 99-108, 135).
Plaintiff's applications were denied and she
requested a hearing before an administrative law judge ("ALJ").
(R. 76-82).
Plaintiff, who was represented by counsel,
testified at the hearing which was held on December 16, 2009.
vocational expert ("VEil) also testified.
A
(R. 44-62).
The ALJ issued a decision on January 12, 2010, denying
Plaintiff's applications for DIB and SSI based on his
determination that, despite her physical and mental impairments,
Plaintiff retained the residual functional capacity ("RFC") to
perform work existing in significant numbers in the national
economy. 3
(R. 10-18).
Plaintiff's request for review of the
ALJ's decision was denied by the Appeals Council on January 22,
2010.
(R. 1-6).
Thus, the ALJ's decision became the final
decision of the Commissioner.
This appeal followed.
Bipolar disorder is a serious mental illness.
People who have it experience
dramatic mood swings. They may go from overly energetic, "high" and/or
irritable, to sad and hopeless, and then back again. They often have normal
moods in between. The up feeling is called mania.
The down feeling is
depression. www.nnlm.nih.gov/medlineplus/bipolardisorder ("Medlineplus").
3 The Social Security Regulations define RFC as the most a disability claimant
can still do despite his or her physical or mental limitations. See 20
C.F.R. §§ 404.1545(a), 416.945(a).
2
2
I I I. BACKGROUND
Plaintiff testified at the hearing before the ALJ as
follows:
Plaintiff was born on January 4, 1962, and she is a high
school graduate.
Plaintiff worked as a bartender/waitress at
The Old Place Inn from 1988 to April 2007, when she was
terminated as a result of her bipolar disorder. 4
(R. 47-48, 52,
57, 136).
In January 2005, Plaintiff underwent back surgery by Dr.
Daniel Bursick, a neurosurgeon.
At the time of the hearing,
Plaintiff continued to suffer from low back pain, as well as
neck pain.
In lieu of further surgery, Dr. Bursick recommended
a course of pain management.
As a result, Plaintiff was being
treated at Office-Based Anesthesia Solutions, Inc. with
injections and medication.
(R. 53, 137).
Plaintiff suffered from migraines several times a year due
to her neck problem.
She also suffered from asthma for which
she used an Advair inhaler. s
As to other medications, Plaintiff
was taking Vicodin and Neurontin for neck and back pain as
I was
In this connection, Plaintiff testified: "It made my employer nuts.
having - I would flip out, say crazy things, make scenes in the restaurant
and he just couldn't have that anymore."
(R. 57).
5Advair is a combination of medications that is used to prevent wheezing,
shortness of breath and breathing difficulties caused by asthma and chronic
obstructive pulmonary disease. Medlineplus.
4
3
needed, Depakote and Seroquel for her bipolar disorder, and
Klonopin for panic attacks as needed. s
(R. 54-56).
IV. MEDICAL EVIDENCE 7
Dr. Jack Mannheimer, a psychiatrist, performed an initial
evaluation of Plaintiff on April 12, 2007. 8
At the time,
Plaintiff was taking Lexapro for depression which had been
prescribed by her primary care physician. 9
Plaintiff/s
presenting problems included increased irritability, difficulty
getting out of bed and a 15-pound weight loss.
Plaintiff also
reported that she suffered from panic attacks.
Plaintiff
indicated that she was living with her boyfriend and working 3
days a week as a bartender.
Dr. Mannheimer diagnosed Plaintiff
6Vicodin is in a class of medications called opiate (narcotic) analgesics that
is used to relieve moderate to severe pain. Neurontin is used to control
certain types of seizures in people who have epilepsy.
It treats seizures by
decreasing abnormal excitement in the brain.
Depakote is used to treat mania
(episodes of frenzied, abnormally excited mood) in people with bipolar
disorder.
Seroquel is used to treat symptoms of schizophrenia (a mental
illness that causes disturbed or unusual thinking, loss of interest in life,
and strong or inappropriate emotions).
Klonopin is used to relieve panic
attacks. Medlineplus.
7 Plaintiff's arguments in support of her motion for summary judgment relate
solely to her mental impairments.
Specifically, Plaintiff contends that the
ALJ failed to include in the RFC assessment all of the limitations caused by
her mental impairments which, in turn, resulted in a deficient hypothetical
question to the VE.
Under the circumstances, the Court/s summary of the
evidence will be limited to Plaintiff's mental impairments.
8Records of Plaintiff's primary care physician, Dr. Vincente Reyes, reflect
complaints of depression beginning on January 16, 2007.
(R. 178).
In his
decision, the ALJ erroneously states: uThe first mention of depression from
the claimant occurred on October 16, 2007 when she reported crying spells and
problems with her boyfriend."
(R. 13).
~Lexapro is used to treat depression and generalized anxiety disorder
(excessive worry and tension that disrupts daily life and lasts for 6 months
or longer). Medlineplus.
4
with major depression and his treatment plan for Plaintiff
included medication and cognitive therapy.
(R.
384-87).
Between April 26, 2007 and October 1, 2007, Plaintiff
attended 17 therapy sessions.
During 8 of these sessions, Dr.
Mannheimer was consulted regarding adjustment of Plaintiff's
medications due to continuing problems. 10
(R. 367 83).
On October 16, 2007, Plaintiff presented to the Emergency
Department of Jefferson Regional Medical Center stating that she
was depressed and did not want to live.
Plaintiff reported that
she cried all the time, and that she had had a fight with her
boyfriend with whom she lived.
The physician who performed a
physical examination of Plaintiff described her psychological
status as follows: "Alert and oriented x 3.
Is cooperative.
Memory is intact.
She seems depressed.
No longer wants to live
but has no plan."
During a mental health evaluation, Plaintiff
IOPor example, on May 30, 2007, Plaintiff reported difficulty sleeping,
irritability and increased crying (R. 381) i on June 17, 2007, Plaintiff was
very upset because her boyfriend hit her and she did not feel that she could
live alone (R. 379) i on June 28, 2007, Plaintiff's mood remained labile and
she continued to have problems with her temper (R. 377) i on July 2, 2007,
Plaintiff had an emergency therapy session due to terrible dreams and night
terrors which were causing anxiety and fear (R. 376) i on August 2, 2007,
Plaintiff continued to report nightmares and increased stress relating to her
boyfriend's purchase of a bar/restaurant (R. 374) i on August 22, 2007,
Plaintiff reported being easily agitated (R. 373) i on August 29, 2007,
Plaintiff reported that her memory remained a problem (R. 372) i on September
5, 2007, the therapist instructed Plaintiff when to take a Xanax tablet to
avoid becoming hysterical (R. 371) (Xanax is used to treat anxiety and panic
disorders. Medlineplus) i on September 13, 2007, Plaintiff reported constant
crying and difficulty sleeping (R. 370); on September 20, 2007, Plaintiff
reported continued high emotional reaction to events (R. 369) i and on October
1, 2007, Plaintiff reported a full blown anxiety attack with racing thoughts
and shaking (R. 367).
5
"eloped," but the physician indicated that there was no reason
to recover or hold her.
(R.
179-80).
During a therapy session on November IS, 2007, Plaintiff
reported that she had gotten a job baking; that things at home
were "1000 times better;" and that she was going to start
bartending.
(R. 366).
Six days later, Plaintiff left a message
for her therapist, stating that her medications were not working
and that she had just been released from jail for ramming her
car into her boyfriend's truck three times after drinking. 11
(R.
366) .
During her therapy session on November 28, 2007, Plaintiff
reported that she did not feel as if her temper was under
control.
However, she denied that drinking alcohol was a
problem.
(R. 365).
On January 10, 2008, Plaintiff told the
therapist that she had quit baking; that she was working 7 days
a week and could not take it; that she was having almost daily
panic attacks which caused shaking and confusion; that she was
not eating or sleeping; and that her boyfriend was drinking and
out of control and his business was falling apart.
Dr.
Mannheimer was consulted and he prescribed an additional
medication for Plaintiff.
(R. 363).
11 Apparently, Plaintiff was outraged that her boyfriend wanted her to quit the
baking job.
(R. 364).
6
Late in the evening of January 12, 2008, Plaintiff was
taken by ambulance to Mercy Hospital with complaints of
blackouts.
Plaintiff told the triage nurse that two days
earlier, she ran her car into her boyfriend's car damaging both
vehicles; she threw her boyfriend's belongings out the window;
she woke up in the street in the middle of the night: and she
did not remember any of it.
Plaintiff reported that the problem
started the previous year, but recently was getting worse, and
that she took Klonopin and performed deep breathing when
anxious.
Although Plaintiff minimized the impact of alcohol on
her behavior, she admitted to drinking three times a week and to
two driving under the influence charges in less than 30 days.
Plaintiff expressed suicidal ideation by means of "something
fast," and she endorsed irritability, erratic sleep and
hopelessness.
disorder.
The diagnostic impression included bipolar
Plaintiff was assigned a score of 25 on the Global
Assessment of Functioning ("GAF") Scale. 12
(R. 192, 196, 201,
203-04, 207).
12 The GAF scale is used by clinicians to report an individual's overall level
of functioning.
The scale does not evaluate impairments caused by physical
or environmental factors.
The GAF scale considers psychological, social and
occupational functioning on a hypothetical continuum of mental health to
mental illness. The highest possible score is 100, and the lowest is 1. A
GAF score between 21 and 30 denotes: "Behavior is considerably influenced by
delusions or hallucinations OR serious impairment in communication or
judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal
preoccupation) OR inability to function in almost all areas (e.g., stays in
bed all daYi no job, home, or friends). American Psychiatric Association:
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text
Revision (2000), at 34 (bold face in original) ("DSM-IV-TR").
7
As part of the intake process for Mercy Hospital's
Inpatient Behavioral Health Unit, Plaintiff underwent a
psychiatric evaluation by Dr. Laura Z. Childress-Hazen.
Plaintiff reported depression and impulsive thoughts of taking
an overdose to commit suicide.
Plaintiff described feelings of
hopelessness and was overwhelmed by owning a bar/restaurant with
her boyfriend.
Dr. Childress-Hazen's diagnoses included bipolar
disorder and alcohol abuse and she indicated that intermittent
explosive disorder needed to be ruled out.
She also indicated
that Plaintiff's limitations included working in an atmosphere
where alcohol was present and problems with her boyfriend.
Dr.
Childress-Hazen rated Plaintiff's score on the GAF scale a 20. 13
Plaintiff was admitted to the hospital for treatment and
discharged on January 15, 2008.
(R. 189, 192-94).
During a therapy session on February 6, 2008, Plaintiff
reported shaking due to her "nerves."
that she had lost 9 pounds.
Plaintiff also reported
At this time, Plaintiff was
(R. 361).
cleaning houses 3 days a week.
therapy session on February 20
1
During Plaintiff's
2008 1 the report from her
hospitalization at Mercy Hospital was reviewed.
The therapist
noted that Plaintiff had "absolutely no insight into [her]
A GAF score between 11 and 20 denotes: "Some danger of hurting self or
others (e.g., suicide attempts without clear expectation of death; frequently
violent; manic excitement) OR occasionally fails to maintain minimal personal
hygiene (e.g., smears feces) OR gross impairment in communication (e.g.,
largely incoherent or mute).
DSM-IV-TR.
13
8
behavior or illness."
(R. 360).
During a therapy session on
April 2, 2008, Plaintiff reported that she had been off her
medications for 2 weeks and her symptoms had increased.
Plaintiff also reported that she had applied for welfare and
disability benefits.
(R. 359).
During an appointment with Dr. Mannheimer on April 21,
2008, Plaintiff indicated that she could not work due to stress.
(R. 358).
A month later, Plaintiff told her therapist that she
was having difficulty sleeping; she felt nervous and jittery;
her back was painful; and her mood unstable.
The therapist
indicated that Dr. Mannheimer would be consulted for a
medication adjustment.
(R.
356-57).
On May 21, 2008, Dr. Mannheimer completed a questionnaire
regarding Plaintiff's mental impairments in which he indicated
that he saw Plaintiff intermittently; that her diagnoses
included bipolar disorder, alcohol abuse in recent remission and
personality disorder; that her GAF score was 50;14 that
Plaintiff's history included episodes of inability to function
due to depression, episodes of impulsive behavior and blackoutsi
that Plaintiff was unemployed and living with her boyfriend;
that her appearance was appropriate, her behavior and
psychomotor activity were in control, and her mood was depressed
14A GAF score between 41 and 50 denotes: "Serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).
DSM-IV-TR.
9
and anxious with underlying anger; that her concentration,
memory and social judgment were fair; that she had episodes of
poor impulse control; and that her insight was poor.
As to
activities of daily living, Dr. Mannheimer indicated that
Plaintiff had "periods of inability to follow through."
With
regard to social functioning, Dr. Mannheimer indicated that
Plaintiff had periods of increased irritability which resulted
in difficulty getting along with others.
(R. 250-53).
The same day, Dr. Mannheimer completed a Medical Source
Statement of Ability to do Work-Related Activities (Mental) for
Plaintiff.
The doctor opined that, due to symptoms of her
bipolar disorder, Plaintiff was markedly limited in her ability
(1) to understand, remember and carry out detailed instructions,
(2) to respond appropriately to work pressures in a usual work
setting, and (3) to respond to changes in a routine work
setting. 15
Dr. Mannheimer further opined that Plaintiff was
moderately limited in her ability (1) to understand, remember
and carry out short, simple instructions,
(2) to make judgments
on simple work-related decisions, and (3) to interact
appropriately with the public, supervisors and co-workers. 16
255) •
A "marked" limitation indicates a major limitation in a particular area.
The ability to function is severely limited but not precluded.
(R. 254).
16 A "moderate" limitation indicates moderate limitation in an area but the
individual is still able to function satisfactorily.
(R. 254).
15
10
(R.
During a therapy session on June 11, 2008, Plaintiff
indicated that her boyfriend's bar was involved in drug deals,
and that she was leaving him when she is awarded disability
benefits.
stable."
The therapist noted that Plaintiff "seems a bit more
(R. 355).
Thereafter, Plaintiff cancelled therapy
sessions scheduled for July 5, 2008 and July 16, 2008, and she
failed to show for sessions scheduled for July 24, 2008 and
August 20, 2008.
On July 2, 2008, John Rohar, PhD, a non-examining State
agency psychological consultant, completed a Psychiatric Review
Technique Form in connection with Plaintiff's applications for
DIB and SSI.
Dr. Rohar opined that Plaintiff did not meet the
requirements of Listing 12.04 relating to affective disorders,
Listing 12.08 relating to personality disorders, or Listing
12.09 relating to substance addiction disorders. 17
With regard
to functional limitations, Dr. Rohar opined that Plaintiff was
mildly limited in her activities of daily livingi that she was
moderately limited in maintain social functioning,
concentration, persistence and pace; and that she had not
experienced repeated episodes of decompensation, each of an
extended duration.
(R. 269 81).
l/rf a disability claimant's impairment meets or equals an impairment listed
in Part 404, Subpart P, Appendix 1 of Title 20 of the Code of Federal
Regulations, he or she is conclusively presumed to be disabled.
Bowen v.
Yuckert, 482 U.S. 137, 141 (1987).
11
In a Mental RFC Assessment completed the same day, Dr.
Rohar indicated that Plaintiff was markedly limited in her
ability to understand, remember and carry out detailed
instructions; moderately limited in her ability to (a)
understand, remember and carry out short, simple instructions,
(b) maintain attention and concentration for extended periods,
(c) work in proximity to others without being distracted by
them,
(d) make simple work-related decisions,
(e) complete a
normal workday and workweek without interruptions from
psychologically based symptoms,
(f) perform at a consistent pace
without an unreasonable number and length of rest periods,
interact appropriately with the public,
(g)
(h) accept instructions
and respond appropriately to criticism from supervisors,
(i) get
along with coworkers or peers without distracting them or
exhibiting behavioral extremes,
(j) maintain socially
appropriate behavior, and (k) respond appropriately to changes
in the work setting; and had no limitations in her ability to
(a) remember locations and work like procedures,
(b) perform
activities within a schedule, maintain regular attendance and be
punctual,
(c) sustain an ordinary routine without special
supervision,
(d) ask simple questions or request assistance, (e)
be aware of normal hazards and take appropriate precautions, and
(f) set realistic goals or make plans independently of others.
(R. 265 66).
12
Plaintiff returned to Dr. Mannheimer on March 9, 2009.
She
denied alcohol abuse and reported that she was taking her
medications as prescribed.
Dr. Mannheimer described Plaintiff
as "in part remission" and he indicated that her outpatient
treatment should continue.
(R.
353).
During a therapy session on March 17, 2009, Plaintiff
reported manic episodes with racing thoughts and psychomotor
agitation, as well as difficulty sleeping.
She also reported
that she had not consumed alcohol for 18 months.
Plaintiff
indicated that she had been out of the hospital for 2 weeks.
(R.
353).
Dr. Mannheimer performed a psychiatric evaluation of
Plaintiff on March 18, 2009.
In his report, Dr. Mannheimer
noted that Plaintiff recently had been discharged from an 8 day
hospital admission for a manic episode. 18
a 45.
(R. 348-50).
He rated her GAF score
The notes of Plaintiff's last therapy
session in the record are dated April 6, 2009, and indicate that
her appetite was poor; her energy fluctuated; her sleep was
poor; and she was scheduled to see Dr. Mannheimer on May 4,
2009.
(R.
351).
18There is no evidence in the record pertaining to this hospitalization. On
remand, Plaintiff should be permitted to submit these records into evidence.
13
V. ALJ'S DECISION
In order to establish a disability under the Social
Security Act, a claimant must demonstrate an inability to engage
in any substantial gainful activity due to 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 not less than 12 months.
U.S.C.
§
423(d) (1).
See 42
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.
See 42 U.S.C.
§
423(d) (2) (A).
When presented with a claim for disability benefits, an ALJ
must follow a sequential evaluation process.
§§
404.1520(a) (4), 416.920(a) (4).
See 20 C.F.R.
The process was described by
the Supreme Court in Sullivan v. Zebley, 493 U.S. 521 (1990), as
follows:
*
*
*
Pursuant to his statutory authority to implement the
SSI Program, (footnote omitted) the Secretary has
promulgated regulations creating a five-step test to
determine whether an adult claimant is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987).
(footnote omitted).
The first two steps involve threshold determinations that
the claimant is not presently working and has an impairment
14
which is of the required duration and which significantly
limits his ability to work. See 20 C.F.R. §§ 416.920(a)
through (c) (1989). In the third step, the medical evidence
of the claimant's impairment is compared to a list of
impairments presumed severe enough to preclude any gainful
work. See 20 C.F.R. pt. 404, subpt. P, App. 1 (pt.
A) (1989). If the claimant's impairment matches or is
"equal" to one of the listed impairments, he qualifies for
benefits without further inquiry. § 416.920(d). If the
claimant cannot qualify under the listings, the analysis
proceeds to the fourth and fifth steps. At these steps,
the inquiry is whether the claimant can do his own past
work or any other work that exists in the national economy,
in view of his age, education, and work experience. If the
claimant cannot do his past work or other work, he
qualifies for benefits.
493 U.S. at 525 26.
*
*
*
The claimant bears the burden of establishing steps one
through four of the sequential evaluation process for making
disability determinations.
At step five, the burden shifts to
the Commissioner to consider "vocational factors" (the
claimant's age, education and past work experience) and
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy in
light of his or her RFC.
Ramirez v. Barnhart, 372 F.2d 546,
550 51 (3d Cir.2004) .
with respect to the ALJ's application of the five-step
sequential evaluation process in the present case, steps one and
two were resolved in Plaintiff's favor: that is, the ALJ found
that Plaintiff had not engaged in substantial gainful activity
since her alleged onset date of disability, and the medical
15
evidence established that Plaintiff suffers from the following
severe impairments: residuals of an anterior cervical
laminectomy, degenerative disc disease, asthma, bipolar
disorder, a personality disorder, migraines and drug and alcohol
abuse in remission
(R. 12).
Turning to step three, the ALJ found that Plaintiff's
impairments were not sufficiently severe to meet or equal the
requirements of any impairment listed in 20 C.F.R., Pt. 404,
Subpt. P, App. 1, and, in particular, Listings 12.04 and 12.09
relating to affective disorders and substance addiction
disorders, respectively.
(R.1314).
Before proceeding to step four, the ALJ assessed
Plaintiff's RFC, concluding that Plaintiff retained the RFC to
perform light work that does not require (a) rapid, repetitive
motion with her bilateral upper extremities,
(b) exposure to
unprotected heights and dangerous machinery,
(c) piece work
production rate pace, and (d) more than incidental stooping,
kneeling, crouching, crawling, balancing or climbing or change
in work processes. 19
(R. 15).
The ALJ then proceeded to step
four, finding that in light of Plaintiff's RFC, she is unable to
perform any of her past relevant work.
(R. 16).
noted by Plaintiff, the foregoing hypothetical question contains only one
limitation that could be characterized as a mental limitation,
no
"piece work production rate pace."
19 A5
16
Finally, at step five, considering Plaintiff's age,
education, work experience and RFC and the VE's testimony, the
ALJ found that Plaintiff could perform other work existing in
the national economy, including the jobs of a guard, an
information clerk and a cleaner.
(R. 16-17
VI. STANDARD OF REVIEW
The Court's review of the Commissioner's decision is
limited to determining whether the decision is supported by
substantial evidence, which has been described as "such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. H
(1971).
Richardson v. Perales, 402 U.S. 389, 401
It consists of something more than a mere scintilla,
but something less than a preponderance.
Califano, 606 F.2d 403, 406 (3d Cir.1979).
Dobrowolsky v.
Even if the Court
would have decided the case differently! it must accord
deference to the Commissioner and affirm the findings and
decision if supported by substantial evidence.
Monsour Medical
Center v. Heckler! 806 F.2d 1185, 1190-91 (3d Cir.1986) .
VII. DISCUSSION
In support of her motion for summary judgment, Plaintiff
asserts! among other things/ that the ALJ's RFC assessment was
insufficient for the Court to determine whether significant
17
probative evidence was not credited or simply ignored by the
ALJ . 20
The Court agrees.
In Cotter v. Harris, 642 F.2d 700 (3d Cir.1981) , a
disability benefits claimant sought judicial review of a
decision of the Secretary of Health and Human Services denying
his applications for DIB and SSI.
The district court granted
the Secretary's motion for summary judgment, and an appeal was
taken by the claimant.
The Court of Appeals for the Third
Circuit held the ruling of the district court that the claimant
was not disabled by his heart condition was required to be
vacated because the ALJ failed to explain his implicit rejection
of evidence which supported the claim or even to acknowledge the
presence of such evidence.
See also Wier v. Heckler, 734 F.2d
955 (3d Cir.1984) ("Once again we find that the failure of an
administrative law judge to mention and explain medical evidence
adverse to his position has deprived the Secretary of the
substantial evidence necessary to sustain his determination.")i
Fargnoli v. Massanari, 247 F.3d 34 (3d Cir.2001) (Although the
20 Relatedly, Plaintiff asserts that (1) the ALJ failed to give appropriate
weight to the opinion of her
psychiatrist, Dr. Mannheimer, regarding
the severity of her mental impairments, Rocco v. Heckler, 826 F.2d 1348, 1350
(3d Cir.1987) (A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating physicians' reports great
weight, especially "when their opinions reflect expert judgment based on a
continuing observation of the patient's condition over a prolonged period of
time."), and (2) the VEts testimony in response to the ALJ's hypothetical
question does not constitute substantial evidence supporting the denial of
Plaintiff's applications for DIB and SSI because it failed to include all of
the limitations resulting from her mental impairments.
(Docket No. 11, pp.
16-17, 21).
18
ALJ in a Social Security disability case is not expected to make
reference to every relevant treatment note in a case where the
claimant has voluminous medical records, the ALJ, as the
factfinder, is expected to consider and evaluate the medical
evidence in the record) .
In the present case, the ALJ's discussion of the evidence
pertaining to Plaintiff's mental impairments is replete with
errors and omissions. 21
First, as noted in footnote 8, the ALJ
erroneously states that Plaintiff did not complain of depression
until October 16, 2007.
In fact, the records of her PCP show
that Plaintiff began to complain of depression as early as
January 2007, and that the PCP prescribed medication for
Plaintiff for the depression.
Second, the ALJ fails to mention
Plaintiff's numerous therapy sessions (28), including an
emergency session for night terrors, and her presentment to the
Emergency Department of Jefferson Regional Medical Center on
October 16, 2007 with suicidal thoughts.
Third, the ALJ
rejected Dr. Mannheimer's opinion because the doctor only
treated Plaintiff intermittently during the relevant period.
Contrary to this finding, Dr. Mannheimer's treatment of
Plaintiff was not intermittent.
Although Dr. Mannheimer's face-
to face evaluations of Plaintiff were limited, the doctor was
21 The Court notes that the medical records in this case were not voluminous.
Nevertheless, the ALJ failed to adequately discuss the records, particularly
as they relate to Plaintiff's mental impairments.
19
consulted by Plaintiff's therapist on numerous occasions to make
medication adjustments due to ongoing symptoms of Plaintiff's
mental impairments.
Fourth, the ALJ failed to mention the
medications prescribed for Plaintiff in an attempt to stabilize
her bipolar disorder and panic attacks, which included Depakote,
Seroquel, Klonopin and Xanax.
Fifth, the ALJ rejected Dr.
Mannheimer's opinion because nthere is no indication that the
claimant has marked limitations" with regard to her ability to
respond appropriately to work pressures and change in the work
setting.
In so doing, the ALJ fails to mention the termination
of Plaintiff's long-time employment (19 years) as a bartender at
The Old Place Inn due to "flipping out," "saying crazy things,"
and "making scenes" in the restaurant.
He also fails to
acknowledge references in the notes of Plaintiff's therapist
regarding Plaintiff's irritability (R. 381), temper (R. 377),
anxiety (R. 376), nightmares and increased stress (R. 374), easy
agitation (R. 373), constant crying (R. 370), high emotional
reaction to events (R. 369), and a full blown anxiety attack
with racing thoughts and shaking (R. 367).
Sixth, the ALJ fails
to mention the evidence which indicates that Plaintiff had been
hospitalized for 8 days for a manic episode in March 2009.
Seventh, the ALJ fails to mention any of Plaintiff's GAF scores
during the relevant period (20, 25, 45 and 50) which at best
20
indicated serious symptoms or impairment and at worst indicated
that she was a danger to herself. 22
In sum, the ALJ's discussion of the evidence pertaining to
Plaintiff's mental impairments was woefully inadequate.
Accordingly, the case will be remanded to the Commissioner for
further consideration of such evidence and a new RFC assessment
based on all of the evidence in Plaintiff's file.
, William L. Standish
United States District Judge
Date: December 7, 2011
22Although GAF scores alone are not sufficient to establish disability, they
are nevertheless relevant evidence that should be considered by the ALJ.
21
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