CAIN v. ASTRUE
Filing
17
OPINION resolving the parties cross-motions for Summary Judgment. Signed by Judge David S. Cercone on 3-15-13. (kak)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RUSSELL B. CAIN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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2:11cv1626
Electronic Filing
MEMORANDUM OPINION
I.
INTRODUCTION
Russell B. Cain (“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 his applications 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. 11, 15). The record has been developed at the
administrative level. For the following reasons, Plaintiff’s Motion for Summary Judgment will
be granted in part and denied in part and Defendant’s Motion for Summary Judgment will be
denied.
II.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI on January 31, 2008, claiming that he was disabled
from all work as of August 16, 2007 due to initial allegations of depression, anxiety, vertigo, and
joint pain. (R. at 165 – 74, 184).1 Plaintiff was initially denied benefits on June 26, 2008. (R. at
63 – 84). A hearing was scheduled for July 6, 2010, and Plaintiff appeared to testify represented
by counsel. (R. at 25 – 34). A vocational expert also testified. (R. at 25 – 34). The
Administrative Law Judge (“ALJ”) issued his decision denying benefits to Plaintiff on July 20,
2010. (R. at 11 – 24). Plaintiff filed a request for review of the ALJ’s decision by the Appeals
Council, which request was denied on October 24, 2011, thereby making the decision of the ALJ
the final decision of the Commissioner. (R. at 1 – 5).
Plaintiff filed his Complaint in this court on January 12, 2012. (ECF No. 4). Defendant
filed his Answer on April 16, 2012. (ECF No. 6). Cross motions for summary judgment
followed. (ECF Nos. 11, 15).
III.
STATEMENT OF THE CASE
A. General Background
Plaintiff was born on March 23, 1961, and was forty nine years of age at the time of his
administrative hearing. (R. at 32, 165 – 74). Plaintiff lived at home with his mother and father,
and had two children. (R. at 219). He obtained a GED in 1982, but had no post-secondary or
vocational education. (R. at 188). Plaintiff stopped working on October 2, 2003, following an
accident on an all-terrain vehicle (“ATV”). (R. at 184). His most recent work included
employment was as a laborer for a construction company between 1986 and 1993, and as a
mechanic at an auto parts shop between 1996 and 2003. (R. at 185, 190).
At the time of his application for benefits, Plaintiff’s daily routine included waking up,
making coffee, watching television, taking a walk, eating dinner, feeding his dogs, watching
more television, washing up, and going to bed. (R. at 196 – 97). Plaintiff claimed that his sleep
1
Citations to ECF Nos. 7 – 7-10, the Record, hereinafter, “R. at __.”
2
was frequently interrupted. (R. at 198). Dizziness allegedly limited Plaintiff when attempting
certain activities, but he was otherwise capable of caring for his personal needs. (R. at 198, 201).
Following his ATV accident, Plaintiff stopped cooking because he was injuring himself and
burning his food. (R. at 199). Plaintiff did do some cleaning, and mowed his lawn when he was
not feeling dizzy. (R. at 199). Plaintiff could go shopping two or three times per month for
approximately half an hour. (R. at 200). He claimed that he could not pay his bills or handle a
checking or savings account, however. (R. at 200).
Plaintiff did still manage to visit, talk, watch television, and go for walks with other
people about once per week. (R. at 201). He also attended church regularly, and went to therapy
every other week. (R. at 201). Plaintiff could walk one half mile before stopping to rest for ten
minutes. (R. at 202). He could only maintain attention for five or ten minutes. (R. at 202).
Written and spoken instructions confused him. (R. at 202). He got along “pretty good” with
other people. (R. at 203). Plaintiff was easily stressed and was afraid of falling. (R. at 203). He
claimed to use a cane to walk. (R. at 203). Plaintiff experienced physical pain in his head, neck,
and back when bending, sitting, and standing. (R. at 204).
B. Medical History
Plaintiff received some psychiatric treatment through Southwestern Pennsylvania Human
Services Behavioral Care (“SPHS”). (R. at 219, 268). On May 19, 2006, Plaintiff originally
contacted SPHS seeking outpatient care. (R. at 219, 268). At the time, he was experiencing
racing thoughts, was depressed, and was irritable. (R. at 219 – 20, 268 – 69). He denied suicidal
ideation. (R. at 220, 269). Plaintiff was diagnosed with depression, and was given a GAF score
of 58. (R. at 221). No other notes from SPHS were provided in the record.
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Douglas V. Skinner, M.D. was Plaintiff’s treating physician between 2006 and 2010. (R.
at 225 – 32, 234, 277 – 80, 305 – 10). His medical record included notations of depression, and
medications prescribed for treatment thereof. (R. at 229 – 32, 234, 277 – 80). Dr. Skinner’s
records also included finding no vestibular abnormality, despite complaints of dizziness. (R. at
232). In later examinations at his practice, Dr. Skinner noted Plaintiff’s depression and anxiety
had worsened. (R. at 277). Plaintiff also complained of joint pain in the shoulders, knees,
elbows, ankle, and neck. (R. at 277).
Dr. Skinner completed an assessment of Plaintiff’s mental status on February 29, 2008.
(R. at 225 – 27). Dr. Skinner indicated that Plaintiff suffered from an emotional disorder, and
had a history of treatment. (R. at 225 – 27). He stated that Plaintiff was prescribed Prozac and
Xanax by a psychiatrist. (R. at 225 – 27). Dr. Skinner opined that Plaintiff was alert and
oriented, exhibited no abnormal emotional symptoms, and had no issues with keeping
appointments, interacting appropriately with office staff, or maintaining an appropriate
appearance. (R. at 225 – 27). He did, however, have issues interacting appropriately with
family, friends, neighbors, co-workers, employers, and the general public – Dr. Skinner
specifically noting that Plaintiff had been reported to the police by others for his behavior. (R. at
225 – 27). Dr. Skinner could not say whether Plaintiff had functional deficits in terms of his
activities of daily living. (R. at 225 – 27). He also could not say whether Plaintiff had difficulty
with concentration, persistence, or pace. (R. at 225 – 27). Plaintiff’s prognosis was believed to
be “fair.” (R. at 225 – 27).
A Physical Residual Functional Capacity Assessment (“RFC”) of Plaintiff was completed
by state agency evaluator Abu N. Ali, M.D. on April 14, 2008. (R. at 235 – 42). Following a
review of Plaintiff’s medical record, Dr. Ali concluded that the evidence established impairment
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in the way of post head trauma dizziness, and a history of asthma. (R. at 235 – 42). As a result
of these impairments, Plaintiff was considered to be limited to occasionally lifting ten pounds,
frequently lifting significantly less than ten pounds, standing and walking two hours of an eight
hour work day, sitting approximately six hours, and occasionally climbing, balancing, stooping,
kneeling, crouching, and crawling. (R. at 235 – 42). He would need to avoid concentrated
exposure to extreme heat and cold, wetness, humidity, fumes, odors, dusts, gases, and poor
ventilation, and all exposure to machinery and heights. (R. at 235 – 42).
As support for these specific findings, Dr. Ali cited a lack of vestibular pathology, normal
MRI of Plaintiff’s brain, an observed antalgic gait, full grip strength, and loss of balance while
walking and bending, and a normal range of motion in the joints and spine. (R. at 235 – 42).
Treatment of Plaintiff’s physical conditions with medication and therapy had generally been
successful, Plaintiff did not require an assistive device to ambulate, and Plaintiff was capable of
walking a half mile. (R. at 235 – 42).
On June 13, 2008, Lanny Detore, Ed.D. completed a Clinical Psychological Disability
Evaluation of Plaintiff on behalf of the Bureau of Disability Determination. (R. at 243 – 50).
Plaintiff was driven to the evaluation, stating that he did not like to drive because of his anxiety.
(R. at 243 – 50). He was also worried that his vertigo could cause him to have an accident. (R.
at 243 – 50). Plaintiff attributed all of his impairments to his ATV accident. (R. at 243 – 50).
Dr. Detore noted Plaintiff’s history of treatment at SPHS, and an in-patient psychiatric
hospitalization in January 2005. (R. at 243 – 50). Plaintiff described being nearly immobilized
by depression for approximately two years following his accident. (R. at 243 – 50). After his
inpatient treatment, Plaintiff continued with therapy and saw improvement. (R. at 243 – 50).
Plaintiff was prescribed Prozac and Xanax. (R. at 243 – 50). Plaintiff stated that he only took
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the Xanax when he felt that he would be in a situation which would cause him anxiety. (R. at
243 – 50).
Plaintiff was able to help his parents around their house, did simple yard work, and
engaged in basic activities of daily living, but lacked motivation to do much more. (R. at 243 –
50). He struggled with depression. (R. at 243 – 50). He reported experiencing anxiety around
others, and often had panic episodes with heart palpitations and shortness of breath. (R. at 243 –
50). Plaintiff had a fear that others were always watching him. (R. at 243 – 50). Plaintiff mostly
kept to himself in a trailer on his parents’ property. (R. at 243 – 50). He visited with friends on
the weekends, and would accompany his parents to eat at a restaurant. (R. at 243 – 50).
Upon examination, Dr. Detore observed that Plaintiff was a pleasant, soft-spoken
individual with slightly elevated anxiety. (R. at 243 – 50). His personal hygiene was fair, but he
had a noticeable body odor. (R. at 243 – 50). Plaintiff endorsed continuing difficulty with sleep.
(R. at 243 – 50). Plaintiff’s thoughts were well organized and goal-directed, and his speech was
relevant and coherent. (R. at 243 – 50). Depression was moderately apparent. (R. at 243 – 50).
He lacked desire to engage in activity, but was able to complete tasks once started. (R. at 243 –
50).
Plaintiff’s affect was found to be subdued, his mood was not severely depressed, he was
oriented, his memory was intact, he had no difficulty with basic arithmetic, and he had no issues
with impulsivity. (R. at 243 – 50). Plaintiff was diagnosed with moderate, ongoing depressive
disorder with dysthymic features, and generalized anxiety disorder. (R. at 243 – 50). Plaintiff’s
prognosis was “good.” (R. at 243 – 50). Dr. Detore opined that Plaintiff’s anxiety would limit
his functioning in a workplace and social settings. (R. at 243 – 50). He would be slightly to
moderately limited in understanding, remembering, and carrying out short, simple instructions.
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(R. at 243 – 50). He would be moderately limited when interacting with supervisors and coworkers, when making judgments on simple work-related decisions, when understanding,
remembering, and carrying out detailed instructions, when responding to work pressures in a
usual setting, and when responding to changes in a routine work setting. (R. at 243 – 50).
Plaintiff would have moderate to marked limitation when interacting with the general public. (R.
at 243 – 50). Plaintiff could manage his own benefits. (R. at 243 – 50). He functioned “fairly
well” in managing activities of daily living in the confines of a comfortable environment. (R. at
243 – 50).
On June 25, 2008, a Mental RFC of Plaintiff was completed by state agency evaluator
Ray M. Milke, Ph.D. (R. at 251 – 54). Following a review of Plaintiff’s record, Dr. Milke
concluded that his impairments included affective disorders and anxiety-related disorders. (R. at
251 – 54). He specifically indicated that these impairments would result in marked limitation
with respect to interacting appropriately with the general public. (R. at 251 – 54). The
limitations would also create moderate limitation with respect to understanding, remembering,
and carrying out detailed instructions, maintaining concentration and attention for extended
periods, completing a normal work day and work week without interruption for psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and length
of rest periods, accepting instructions and responding appropriately to criticism from supervisors,
getting along with co-workers without being a distraction or exhibiting behavioral extremes,
maintaining socially appropriate behavior and levels of neatness and cleanliness, responding
appropriately to change in a work setting, and making realistic goals and plans independently of
others. (R. at 251 – 54).
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Dr. Milke opined that Plaintiff was incapable of understanding and remembering
complex or detailed instructions. (R. at 251 – 54). Plaintiff would have difficulty working with
or near others, and stress would worsen his impairments. (R. at 251 – 54). Plaintiff had a low
tolerance for frustration. (R. at 251 – 54). His limitation in all functional areas considered was
“significant.” (R. at 251 – 54). In spite of his limitations, however, Dr. Milke believed Plaintiff
was capable of engaging in full-time work. (R. at 251 – 54). He could work at a consistent pace
and make simple decisions. (R. at 251 – 54). He could sustain a routine and adapt to changes.
(R. at 251 – 54).
On March 20, 2010, Plaintiff was seen at the emergency department of Monongahela
Valley Hospital for complaints of severe anxiety. (R. at 281 – 82, 287 – 95). He complained of
chills, palpitations, headache, dizziness, and tremors. (R. at 281 – 82). Upon examination he
was found to be in no distress, but hand tremors and tongue fasciculation were observed. (R. at
281 – 82). His anxiety level was considered to be mild. (R. at 289). He was well-groomed, his
behavior was appropriate, his speech was clear, and his thought processes were intact. (R. at
289). He was diagnosed with anxiety and alcohol withdrawal, and was prescribed Librium for
treatment. (R. at 282 – 82, 285). Plaintiff was released to go home, and advised to follow up
with Dr. Skinner upon discharge. (R. at 285). He was not believed to be at risk for falling. (R.
at 291).
Plaintiff was examined by Dr. Skinner at a follow-up appointment in June 2010. (R. at
305 – 10). It was noted that the day Plaintiff suffered a “panic attack” and was seen at the
hospital, he was scheduled for a hearing before the Social Security Administration. (R. at 305 –
10). Dr. Skinner opined that – at that time – Plaintiff had stopped taking his medication for
depression and anxiety, as prescribed, despite “doing ok.” (R. at 305 – 10). Dr. Skinner had
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started Plaintiff on Zoloft upon his release from the hospital, and also prescribed Xanax, as
needed. (R. at 305 – 10). Plaintiff had since reported sleeping better and eating better. (R. at
305 – 10). His mood was better, he felt less anxious, and he had quit drinking altogether. (R. at
305 – 10). Plaintiff did have noticeable tremors in his hands. (R. at 305 – 10). Dr. Skinner
diagnosed improved anxiety with panic attacks, improved depression, history of head injury with
some residual personality changes and cognitive changes, history of substance abuse, history of
alcoholism, and intentional tremors related to alcohol use and exacerbated by withdrawal. (R. at
305 – 10).
C. Administrative Hearing
At his hearing, Plaintiff testified that he had been seeing Dr. Skinner for treatment of his
physical and mental ailments, including tremors, vertigo, back and neck pain, depression,
anxiety, and sleeplessness. (R. at 27). Plaintiff stated that he had begun experiencing these
problems after sustaining injuries to his head, neck, and back in an ATV accident. (R. at 28).
Dr. Skinner provided prescription medication for treatment of Plaintiff’s ailments. (R. at 28).
He took over-the-counter medication for relief of headaches. (R. at 28).
Plaintiff informed the ALJ that his ability to walk was his greatest limitation. (R. at 28).
Extended distances required frequent rest and caused pain. (R. at 28). Plaintiff also explained
that his hand tremors often caused him to drop items and made writing even his name difficult.
(R. at 27, 29). He frequently experienced blurred vision and inability to concentrate. (R. at 28).
Bouts of dizziness would cause him to fall. (R. at 29).
Plaintiff testified to experiencing panic attacks “a couple times a day.” (R. at 30). The
attacks could last up to four hours, and had been so extreme that he sought help at the hospital.
(R. at 30). Plaintiff experienced these episodes despite implementation of relaxation techniques
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and use of prescribed medication. (R. at 30). When around groups of people, Plaintiff claimed
that he would become “jittery.” (R. at 31). Plaintiff lived with his mother and father, and relied
upon his mother to prepare his meals. (R. at 30). He spent his days watching television, and did
not help with household chores. (R. at 31).
Following Plaintiff’s testimony, the ALJ asked the vocational expert whether jobs existed
in significant numbers in the national economy for an individual of Plaintiff’s age, educational
background, and work experience, if limited to medium exertional work in a low stress
environment, with no exposure to the public. (R. at 33). In response, the vocational expert
stated that such a person would be qualified for “medium laundry worker jobs,” with 400,000
positions available in the national economy, for “medium packing jobs,” with 500,000 positions
available, and for “medium cleaning jobs,” with 160,000 positions available. (R. at 33).
IV.
STANDARD OF REVIEW
To be eligible for social security benefits under the Act, a claimant must demonstrate to
the Commissioner that he or she 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 twelve months.
42 U.S.C. §423(d)(1)(A); Brewster v. Heckler, 786 F. 2d 581, 583 (3d Cir. 1986).
When reviewing a claim, the Commissioner must utilize a five-step sequential analysis to
evaluate whether a claimant has met the requirements for disability. 20 C.F.R. §§ 404.1520,
416.920. The Commissioner 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.
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404, Subpt. P, App’x 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).
Judicial review of the Commissioner’s final decisions on disability claims is provided by
statute, and is plenary as to all legal issues. 42 U.S.C. §§ 405(g)2, 1383(c)(3)3; Schaudeck v.
Comm’r of Soc. Sec., 181 F. 3d 429, 431 (3d Cir. 1999). Section 405(g) permits a district court
to review the transcripts and records upon which a determination of the Commissioner is based;
the court will review the record as a whole. See 5 U.S.C. §706. The district court must then
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).
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determine whether substantial evidence existed in the record to support the Commissioner’s
findings of fact. Burns v. Barnhart, 312 F. 3d 113, 118 (3d Cir. 2002).
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 Commissioner’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). 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, 1190 – 91 (3d. Cir. 1986).
V.
DISCUSSION
In his decision, the ALJ determined that Plaintiff suffered severe, medically determinable
impairments in the way of intracranial injury/residual of a head injury, depressive disorder, and
anxiety disorder. (R. at 13). As a result of these impairments, Plaintiff was limited to medium
exertional work in a low stress work environment, and could not work with the general public or
in occupations of a competitive nature. (R. at 15). In spite of such limitations, and based upon
12
the testimony of the vocational expert, the ALJ ultimately determined that Plaintiff was eligible
for a significant number of jobs in the national economy, and was not entitled to DIB or SSI. (R.
at 19 – 20).
Plaintiff objects to the determination, arguing that remand is required due to several
errors made by the ALJ in his decision rationale. (ECF No. 12). According to Plaintiff, the ALJ
failed to consider properly the findings of Drs. Ali and Detore, failed to provide all limitations
from his RFC to the vocational expert in his hypothetical question, and failed to account for
findings of moderate limitation in concentration, persistence, and pace in either the RFC or
hypothetical question. (ECF No. 12 at 8 – 21). Defendant counters that the ALJ’s assessments
were all adequately supported by substantial evidence. (ECF No. 16 at 12 – 23).
Plaintiff’s first argument focuses upon the ALJ’s treatment of various medical opinions
found in the record. The ALJ listed the findings made by Dr. Detore during his examination, but
did not indicate which findings he gave weight, which he did not give weight, and his reasoning
for his choices. (R. at 16 – 17). Also, without discussing the pertinent portions of Dr. Ali’s
medical conclusions, the ALJ summarily rejected Dr. Ali’s findings as “not supported by the
evidence of record.” (R. at 17).
The United States Court of Appeals for the Third Circuit has held that “[a] written
evaluation of every piece of evidence is not required, so long as the ALJ articulates at some
minimum level her analysis of a particular line of evidence.” Phillips v. Barnhart, 91 Fed.
App’x 775, 780 n. 7 (3d Cir. 2004) (citing Green v. Shalala, 51 F. 3d 96, 101 (7th Cir. 1995)).
This is particularly true when evidence is not indicative of limitation. Johnson v. Comm’r of
Soc. Sec., 529 F. 3d 198, 204 (3d Cir. 2008). See also Hur v. Barnhart, 94 Fed. App’x 130, 133
(3d Cir. 2004). However, it has also long been the policy in this circuit that “an ALJ’s finding of
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residual functional capacity must ‘be accompanied by a clear and satisfactory explication of the
basis on which it rests.’” Fargnoli v. Massanari, 247 F. 3d 34, 41 (3d Cir. 2001) (quoting Cotter
v. Harris, 642 F. 2d 700, 704 (3d Cir. 1981)). “[T]he examiner’s findings should be as
comprehensive and analytical as feasible and, where appropriate, should include a statement of
subordinate factual foundations on which ultimate factual conclusions are based.” Id. (quoting
Baerga v. Richardson, 500 F. 2d 309, 312 (3d Cir. 1974)). The ALJ did not meet these
requirements.
It is one thing to recite medical findings, it is another matter entirely to discuss findings.
While the ALJ reported the findings of Dr. Detore, he neither discussed the import of the
findings, nor did he explain why the findings were not adopted. In a similar – but more severe –
vein, the ALJ rejected the findings of Dr. Ali. The ALJ did not, however, attempt to recount the
more remarkable findings, nor did he attempt more than a cursory explanation for rejecting those
findings. Given the rather concise nature of Plaintiff’s medical record, ignoring such thorough
findings was improper. Further, simply stating that Dr. Ali’s conclusions were “not supported by
the evidence of record,” was inadequate to explain the findings away. An ALJ’s failure to
explain the rejection of evidence contrary to his disability determination is clear error. Fargnoli,
247 F. 3d at 42, 44. Both doctors’ evaluations included limitations not addressed by the ALJ,
and should have received greater attention.
Additionally, the court takes note that the ALJ also failed to discuss the findings of Dr.
Milke in his decision with greater than two brief sentences. (R. at 18 – 19). Nonetheless,
Defendant attempts to rely on Dr. Milke’s notes to support his contention that the ALJ made the
correct decision. However, consideration of this evidence by the court would not be appropriate,
because the ALJ made no mention of it in his decision. Id. at 44 n. 7. As such, the failure to
14
give thorough consideration in his decision to Drs. Ali, Detore, and Milke – three medical
opinions in an otherwise sparse medical record – renders the ALJ’s rationale severely lacking.
Id. at 42. This court cannot overlook these failings by the ALJ. To do otherwise “approaches an
abdication of the court’s ‘duty to scrutinize the record as a whole to determine whether the
conclusions reached are rational.’” Stewart v. Sec’y of Health, Educ. and Welfare, 714 F. 2d
287, 290 (3d Cir. 1983) (quoting Arnold v. Sec’y of Health, Educ. and Welfare, 567 F. 2d 258,
259 (4th Cir. 1977)).
Plaintiff next alleges that the ALJ committed error by failing to include the limitation that
Plaintiff could not engage in work of a competitive nature in his hypothetical to the vocational
expert, while including said limitation in his RFC. With respect to such a discrepancy, a
claimant is justified in challenging the validity of an ALJ’s reliance upon the testimony of a
vocational expert when the ALJ “failed to convey limitations to the vocational expert that were
properly identified in the RFC assessment.” Rutherford v. Barnhart, 399 F. 3d 546, 554 n. 8 (3d
Cir. 2005). The ALJ cannot reasonably rely upon the vocational expert’s testimony regarding a
less constrained set of functional limitations to support his conclusion that Plaintiff can find a
significant number of jobs in the national economy with a more constrained set of limitations.
While Defendant would ask this court to assume that the inaudible portion of the ALJ’s question
to the vocational expert in the hearing transcript included the missing limitation found in the
RFC, the court will not do so. There is no evidence adduced by Defendant to support such a
contention. This is error requiring remand.
Finally, Plaintiff asserts that the ALJ’s hypothetical and RFC should have included
accommodations for moderate limitation in concentration, persistence, and pace, because the
ALJ found said limitation at Step 3 of the five step analysis. Defendant counters that such a
15
limitation finding was not part of the ALJ’s RFC assessment, and should have no bearing upon
his analysis at Steps 4 and 5. The court disagrees.
This issue has been addressed by the United States Court of Appeals for the Third
Circuit, and this court finds the present case sufficiently analogous. The circuit court has held
that “[w]hile S.S.R. 96-8p does state that the PRTF findings are ‘not an RFC assessment’ and
that step four requires a ‘more detailed assessment,’ it does not follow that the findings on the
PRTF play no role in steps four and five, and S.S.R. 96-8p contains no such prohibition.”
Ramirez v. Barnhart, 372 F. 3d 546, 555 (3d Cir. 2004). While the ALJ’s finding of moderate
limitation with concentration, persistence and pace did not appear on a separate PRTF, it did
appear in the decision for the same purpose of assessing Plaintiff’s qualification for a listed
impairment at Step 3. The ALJ does not discuss why this finding was not accommodated in his
RFC, and neither does he discuss record evidence tending to support limitation in concentration,
persistence, and pace. As a result, the court cannot conclude that the ALJ’s RFC and
hypothetical were adequate reflections of Plaintiff’s true level of functioning.
VI.
CONCLUSION
Based upon the forgoing, substantial evidence was not provided by the ALJ to support his
ultimate disability determination. Accordingly, Plaintiff’s Motion for Summary Judgment will
be granted to the extent remand is sought, and denied to the extent reversal and an immediate
award of benefits is sought; Defendant’s Motion for Summary Judgment will be denied; and, the
decision of the ALJ will be vacated and the case remanded for reconsideration consistent with
this opinion. On remand the Commissioner must fully develop the record, afford Plaintiff “an
opportunity to be heard” during the course of the upcoming administrative proceedings, and explain
16
adequately his or her findings on all areas to be addressed. Thomas v. Commissioner of Social
Security Administration, 625 F.3d 798, 800-801 (3d Cir. 2010). Appropriate orders follow.
Date: March 15, 2013
s/ David Stewart Cercone
David Stewart Cercone
United States District Judge
cc.
Erik W. Berger, Esq.
Law Office of Erik W. Berger
3744 Dupont Station Court S
Jacksonville, FL 32217
(904) 733-2800
Albert Schollaert
United States Attorney’s Office
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
(412) 644-3500
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