MELIUS v. ASTRUE

Filing 16

MEMORANDUM AND ORDER OF COURT granting 9 Plaintiff's Motion for Summary Judgment and denying 11 Defendant's Motion for Summary Judgment. The decision of the Commissioner dated 7/16/10 is vacated and this case is remanded to the Commissioner for furthere proceedings consistent with this opinion. See Memorandum and Order of Court for further details. Signed by Judge Gustave Diamond on 9/30/13. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DANIEL P. MELIUS,
Plaintiff

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)
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v.

Civil Action No. 12-848

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CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,

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Defendant

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)

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MEMORANDUM AND ORDER OF COURT
AND NOW, this

3 old; of September, 2013, upon due consideration of the parties'

cross-motions for summary judgment pursuant to plaintiffs request for review of the decision of
the Commissioner of Social Security ("Commissioner") denying plaintiffs applications for
disability insurance benefits and supplemental security income under Titles II and XVI,
respectively, of the Social Security Act ("Act"), IT IS ORDERED that plaintiffs motion for
summary judgment (Document No.9) be, and the same hereby is, granted and the Commissioner's
motion for summary judgment (Document No. 11) be, and the same hereby is, denied. The
Commissioner's decision of July 16, 2010, will be vacated and this case will be remanded to the
Commissioner for further proceedings consistent with this opinion pursuant to 42 U.S.C. §405(g).
When the Commissioner determines that a claimant is not "disabled" within the meaning
of the Act, the findings leading to such a conclusion must be based upon substantial evidence.
"Substantial evidence has been defined as 'more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate.'" Plummer v. Apfel, 186 F.3d 422,427
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(3d Cir. 1999) (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] decision is not supported by substantial evidence. '" Morales v. Apfel, 225 F.3d
310,317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981». In
evaluating whether substantial evidence supports an ALl's findings, '" leniency [should] be shown
in establishing the claimant's disability, and ... the [Commissioner's] responsibility to rebut it
[should] be strictly construed .... ", Reefer v. Barnhart, 326 F.3d 376,379 (3d Cir. 2003) (quoting
Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979».
Plaintiff protectively filed his pending application for SSI on October 21, 2008, and his
pending application for Title II benefits on December 1, 2008, both alleging a disability onset date
of April 2, 2004, due to a back injury, a leg injury and a learning disorder. Plaintiffs applications
were denied initially. At plaintiffs request, an ALJ held a hearing on January 25, 2010, at which
plaintiff failed to appear. As plaintiffs counsel was present, the ALJ proceeded with the hearing
and questioned the vocational expert. The ALJ subsequently accepted plaintiffs explanation for
not appearing at the January 25,2010, hearing, and a second hearing was held before the ALJ on
June 22, 2010, at which plaintiff and his mother appeared and testified. On July 16,2010, the ALJ
issued a decision finding that plaintiff is not disabled. On April 19,2012, the Appeals Council
denied review making the ALl's decision the final decision of the Commissioner.
Plaintiff was 31 years old at the time of the ALl's decision and is classified as a younger
person under the regulations. 20 C.F.R. §404.1563(c) and 416.963(c). Plaintiff has a high school
education and has past relevant work experience as a heavy laborer, but he has not engaged in any
substantial gainful activity since his alleged onset date.

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After reviewing plaintiff s medical records and considering the testimony of plaintiff,
plaintiff's mother and the vocational expert, the ALl concluded that plaintiff is not disabled within
the meaning of the Act. The ALl found that although the medical evidence establishes that
plaintiff suffers from the severe impairments of degenerative disc disease, degenerative joint
disease and obesity, I those impairments, alone or in combination, do not meet or equal the criteria
of any of the impairments listed at Appendix 1,20 C.F.R. Subpart P, Regulations No.4.
The ALl also found that plaintiff retains the residual functional capacity to perform light
work that allows for sitting or standing alternatively every 30 minutes and that involves only
occasional balancing, stooping, crouching, bending and kneeling. (R. 80). A vocational expert
identified numerous categories ofjobs which plaintiff could perform based upon his age, education,
work experience and residual functional capacity, including marker, ticket seller and information
clerk. Relying on the vocational expert's testimony, the ALl found that while plaintiff cannot
perform his past relevant work, there are jobs that exist in significant numbers in the national
economy that plaintiff can perform. Accordingly, the ALl found 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 twelve months. 42 U.S.c. §§423(d)(l)(A) and 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 ofsubstantial

The ALJ also found that plaintiff's mental impairments are not severe. Although plaintiff
challenges this finding, a review of the ALJ's decision demonstrates that the ALJ properly analyzed the
severity ofplaintiff's mental impairments under the appropriate standard, 20 C.F .R. §§404.1S20a( d)( 1) and
416.920a( d)(1), and concluded that plaintiff has not more than "mild" limitations in any of the requisite
functional areas and has had no episodes of decompensation. (R. 80). The court is satisfied that this
finding is supported by substantial evidence.
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gainful work which exists

In

the national economy

"

42 U.S.C. §§423(d)(2)(A) and

1382c(a)(3)(B).
The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process2 for determining whether a claimant is under a disability. 20 C.F.R. §404.1520
and 416.920; Newell v. Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003).
Generally, 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 several challenges to the ALl's finding of not disabled: (1) the ALJ
erred at step 2 in failing to consider whether plaintiff's sleep apnea is a severe impairment; (2) the
ALJ improperly evaluated the medical evidence from his treating physician and from a state agency
reviewer; and, (3) the ALJ erred in failing to consider all of plaintiff's impairments, both severe
and non-severe, in combination in assessing his residual functional capacity. Because the ALJ
failed to acknowledge, let alone evaluate, plaintiff's medically determinable impairment of sleep
apnea, either alone or in combination with plaintiff's other impairments, both severe and not
severe, at any step in the sequential evaluation process, this case must be remanded to the
Commissioner for further proceedings.
It is axiomatic in social security cases that, although the ALJ may weigh the credibility of

the evidence, he must give some indication of the evidence that he rejects and the reasons for

2
The AU must detennine in sequence: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) ifnot, whether he has a severe impainnent; (3) ifso, whether his impainnent
meets or equals the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if not, whether the
claimant's impainnent prevents him from perfonning his past-relevant work; and (5) if so, whether the
claimant can perfonn 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; Newell, 347 F.3d
at 545-46. Additionally, when there is evidence ofa disabling mental impainnent, the Commissioner must
follow the procedure for evaluating mental impainnents set forth in the regulations. 20 C.F .R. §§404.1520a
and 416.920a; Plummer, 186 F.3d at 432.
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discounting that evidence. Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001). Where the ALl
fails to consider and explain the reasons for discounting all of the relevant evidence before him,
he has not met his responsibilities under the Act and the case must be remanded with instructions
"to review all of the pertinent medical evidence, explaining any conciliations and rejections."
Burnett v. Apfel, 220 F.3d 112, 122 (3d Cir. 2000).
Here, the ALl did not consider all of the pertinent medical evidence. In particular, the
record contains the results of a polysomnography study assessing plaintiff with mild obstructive
sleep apnea-syndrome. (R. 427-28). The report indicates that plaintiff has "abnormal sleep
architecture with a reduction in REM latency and increase in REM sleep" and an "abnormal
respiratory disturbance index, primarily in the form of obstructive sleep apneas and hypopneas."
(R. 427). The report also notes that a "reduction in REM latency and increased REM may
sometimes be seen in endogenous depression" and that a "[c]linical correlation is suggested." (ld.)
The foregoing report constitutes, at a minimum, "medical evidence consisting of signs,
symptoms and laboratory findings" of a medically determinable impairment (20 C.F.R.
§§§404.1508 and 416.908) that the ALl failed to address at all in his decision, either at step 2 to
ascertain whether sleep apnea is a severe impairment, at step 3 to determine whether it meets or
equals a listing, or at step 5 to ascertain whether plaintiffs sleep apnea, alone or in combination
with his other impairments, might result in any additional limitations in plaintiff's residual
functional capacity. The ALl's failure to consider plaintiffs medically determinable impairment
of sleep apnea at any step ofthe sequential evaluation constitutes reversible error that necessitates
a remand in this case.

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On remand, the ALJ first must consider at step 2 whether plaintiff s sleep apnea is a severe
impairment, 3 and, if he determines it is not severe, he must explain his reasons for so finding. If
he determines that sleep apnea is a severe impairment, he must then proceed to step 3 and
determine whether plaintiffs sleep apnea, either alone or in combination with plaintiffs obesity,
meets or equals Listing 3.10.
Listing 3.1 0 specifically addresses sleep-related breathing disorders such as sleep apnea,
which "are caused by periodic cessation of respiration associated with hypoxemia and frequent
arousals from sleep." 3.00(H). The Listings note that in some individuals the disturbed sleep
pattern may cause daytime sleepiness with chronic pulmonary hypertension and/or disturbances in
cognitive functioning, which in tum can affect memory, orientation and personality.4 Here, the
sleep study results suggest a "clinical correlation between plaintiffs abnormal sleep architecture
and endogenous depression." (R.427).
In addition, at step 3 the ALJ must explicitly undertake an analysis as to whether sleep
apnea, in combination with obesity, meets or equals Listing 3.10. The regulations note that the
"combined effects of obesity with respiratory impairments can be greater than the effects of each
ofthe impairments considered separately." 3.00(1). Accordingly, "when determining whether an
individual with obesity has a listing-level impairment or combination of impairments, and when

3
At step 2 of the sequential evaluation process, the ALJ must determine whether a claimant's
impairment is "severe" as defined in the Act. 20 C.F.R. §§404.1520 and 416.920. "[An] impairment or
combination of impairments is not severe if it does not significantly limit your physical or mental ability
to do basic work activities." 20 C.F.R. §§404.l521(a) and 416.921 (a). The step 2 inquiry is a de minimus
screening device and, if the evidence presents more than a slight abnormality, the step 2 requirement of
severity is met and the sequential evaluation process should continue. Newell, 347 F.3d at 546.
Importantly, "[r]easonable doubts on severity are to be resolved in favor of the claimant." Id. at 547.

4
Tn this regard, the court notes that Listing 3.10 is to be analyzed under either Listing 3.09
(chronic cor pulmonale) or Listing 12.02 (organic mental disorders). The regulations recognize that
daytime somnolence may be associated with disturbance in cognitive vigilance and that impairment of
cognitive function is to be evaluated under Listing 12.02. See Appendix 1, §3.00(H).
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assessing a claim at other steps of the sequential evaluation process, including when assessing an
individual's residual functional capacity, [the ALJ] must consider any additional and cumulative
effects of obesity." Id.; SSR 02-1p.
Even if the ALJ determines that plaintiff s sleep apnea is not a severe impairment, he still
must proceed to step 5 and reconsider his residual functional capacity finding. Pursuant to SSR
96-8p, in assessing residual functional capacity, the ALJ "must consider limitations and restrictions
imposed by all of an individual's impairments, even those that are 'not severe.'" The ruling
recognizes that "in combination with limitations imposed by an individuals other impairments, the
limitations due to such a 'not severe' impairment ... may narrow the range of other work that the
individual may still be able to do." Id.

Accordingly, on remand the ALJ must determine if

plaintiffs sleep apnea, whether severe or not, either alone or in combination with all ofplaintiffs
other impairments, both severe and not severe, results in any additional restrictions on plaintiff's
ability to perform work-related functions. See Diaz v. Commissioner of Social Security, 577 F.3d
500 (3d. Cir. 2009).
In doing so, the ALJ must specifically address all of the relevant medical evidence and
explain his reasons for rejecting or discounting any particular evidence. In particular, the ALJ must
explain what impact, if any, plaintiff s sleep apnea may have on his evaluation of the opinion of
state agency reviewer Sharon Becker Tartar, Ph.D., who opined that plaintiff has moderate
limitations in concentration, persistence and pace, and plaintiffs treating physician, Dr.
Shaughnessy, who indicated that plaintiff s symptoms "frequently" would interfere with the
attention and concentration needed to perform simple work tasks. As noted earlier, the Regulations
recognize that "a disturbed sleep pattern may cause daytime sleepiness with chronic pulmonary
hypertension and/or disturbances in cognitive functioning, which in tum can affect memory,
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orientation and personality" and the sleep study results further suggest that there is a correlation
between plaintiffs sleep difficulties and depression. (R.427).
Accordingly, the ALJ should re-analyze the reports of Drs. Becker Tartar and Dr.
Shaughnessy in light ofplaintiffs medically determinable impairment ofsleep apnea and consider
what, ifany, additional restrictions are necessary to account for that impairment, either alone or in
combination with plaintiffs severe physical impairments, including obesity, as well as his not
severe mental impairments. The ALJ, of course, does not have to accept any findings from any
medical source, so long as he adheres to the standards set forth in the regulations for evaluating
medical evidence, 20 C.F.R. §§404.1S27(d)(2) and 416.927(d)(2), and gives some indication ofthe
evidence he rejects and his reasons for rejecting it. 5
Accordingly, for the foregoing reasons, plaintiffs 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

The Commissioner attempts to brush aside the ALJ's failure to address plaintiff's sleep apnea
by arguing that plaintiff has failed to establish any functional limitations reSUlting from that impainnent
beyond those already incorporated in the RFC assessment. However, it is not the province ofthis court to
re-assess plaintiff's residual functional capacity and detennine whether there are, or are not, other
limitations resulting from a medically detenninable impainnentthat the ALJ ignored entirely in rendering
his decision.
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cc:

Joy A. Johnston, Esq.
Johnston Law Offices
P.O. Box 248
Sharpsville, PA 16150
Colin Callahan
Assistant United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, P A 15219

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