SMITH-SCHAEFFER v. COMMISSIONER OF SOCIAL SECURITY
Filing
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MEMORANDUM AND OPINION re 13 Plaintiff's Motion for Summary Judgment, and 11 Defendant's Motion for Summary Judgment. Signed by Judge Arthur J. Schwab on 05/10/2013. (lmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CRYSTAL NICOLE SMITHSCHAEFFER,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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Civil Action No. 12-1374
ELECTRONICALLY FILED
MEMORANDUM OPINION
I.
INTRODUCTION
Crystal Nicole Smith-Schaeffer (“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 her application for supplemental security income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 – 1383f (“Act”). This
matter comes before the Court upon cross-motions for summary judgment. (ECF Nos. 11, 13).
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 filed for SSI with the Social Security Administration on June 1, 2009, claiming
an inability to work due to disability beginning September 1, 2003. (R. at 70 – 76)1. At that
time, Plaintiff claimed to be unable to work as a result of intellectual deficits. (R. at 86).
Plaintiff was initially denied benefits on August 28, 2009. (R. at 27 – 30). A hearing was
scheduled for December 10, 2010. (R. at 19 – 24). Plaintiff did not appear to testify. (R. at 19 –
24). Her attorney did not show cause for her absence. (R. at 19 – 24). The Administrative Law
Judge (“ALJ”) thereafter issued a decision denying benefits to Plaintiff on February 4, 2011. (R.
at 7 – 18). Plaintiff filed a request for review of the ALJ’s decision by the Appeals Council,
which request was denied on August 9, 2012, thereby making the decision of the ALJ the final
decision of the Commissioner. (R. at 1 – 5).
Plaintiff filed her Complaint in this Court on September 25, 2012. (ECF No. 3).
Defendant filed an Answer on January 8, 2013. (ECF No. 6). Cross-motions for summary
judgment followed.
III.
STATEMENT OF THE CASE
In his decision denying SSI to Plaintiff, the ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since May 19,
2009, the application date;
2. The claimant has the following severe impairment: mental retardation;
3. The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1;
4. After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform a full range of work at all exertional
levels but with the following nonexertional limitations: the claimant is limited
to unskilled work;
5. The claimant has no past relevant work;
1
Citations to ECF Nos. 7 – 7-8, the Record, hereinafter, “R. at __.”
2
6. The claimant was born on September 19, 1983 and was 25 years old, which is
defined as a younger individual age 18 – 49, on the date the application was
filed;
7. The claimant has a limited education and is able to communicate in English;
8. Transferability of job skills is not an issue because the claimant does not have
past relevant work;
9. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform; and
10. The claimant has not been under a disability, as defined in the Social Security
Act, since May 19, 2009, the date the application was filed.
(R. at 12 – 15).
IV.
STANDARD OF REVIEW
This Court’s review is plenary with respect to all questions of law. Schandeck v. Comm’r
of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). With respect to factual issues, judicial review is
limited to determining whether the Commissioner’s decision is “supported by substantial
evidence.” 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F. 3d 43, 46 (3d Cir. 1994). A United
States District Court may not undertake a de novo review of the Commissioner’s decision or reweigh the evidence of record. Monsour Medical Center v. Heckler, 806 F. 2d 1185, 1190 – 1191
(3d Cir. 1986). Congress has clearly expressed its intention that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). Substantial evidence “does not mean a large or considerable
amount of evidence, but rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal
quotation marks omitted). As long as the Commissioner’s decision is supported by substantial
evidence, it cannot be set aside even if this Court “would have decided the factual inquiry
differently.” Hartranft v. Apfel, 181 F. 3d 358, 360 (3d Cir. 1999). “Overall, the substantial
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evidence standard is a deferential standard of review.” Jones v. Barnhart, 364 F. 3d 501, 503 (3d
Cir. 2004).
In order to establish a disability under the Act, a claimant must demonstrate a “medically
determinable basis for an impairment that prevents him [or her] from engaging in any
‘substantial gainful activity’ for a statutory twelve-month period.” Stunkard v. Sec’y of
Health & Human Serv., 841 F. 2d 57, 59 (3d Cir. 1988); Kangas v. Bowen, 823 F. 2d 775, 777
(3d Cir. 1987); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is considered to be
unable to engage in substantial gainful activity “only if his [or her] physical or mental
impairment or impairments are of such severity that he [or she] is not only unable to do his [or
her] previous work but cannot, considering his [or her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy.”
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To support his or her ultimate findings, an administrative law judge must do more than
simply state factual conclusions. He or she must make specific findings of fact. Stewart v.
Sec’y of Health, Educ. & Welfare, 714 F. 2d 287, 290 (3d Cir. 1983). The administrative
law judge must consider all medical evidence contained in the record and provide adequate
explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.
2d 955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F. 2d 700, 705 (3d Cir. 1981).
The Social Security Administration (“SSA”), acting pursuant to its legislatively delegated
rule-making authority, has promulgated a five-step sequential evaluation process for the purpose
of determining whether a claimant is “disabled” within the meaning of the Act. The United
States Supreme Court recently summarized this process as follows:
If at any step a finding of disability or non-disability can be made, the SSA will
not review the claim further. At the first step, the agency will find non-disability
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unless the claimant shows that he is not working at a “substantial gainful
activity.”[20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find
nondisability unless the claimant shows that he has a “severe impairment,”
defined as “any impairment or combination of impairments which significantly
limits [the claimant’s] physical or mental ability to do basic work activities.” §§
404.1520(c), 416.920(c). At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. §§ 404.1520(d), 416.920(d). If the claimant’s impairment is not on the
list, the inquiry proceeds to step four, at which the SSA assesses whether the
claimant can do his previous work; unless he shows that he cannot, he is
determined not to be disabled. If the claimant survives the fourth stage, the fifth,
and final, step requires the SSA to consider so-called “vocational factors” (the
claimant’s age, education, and past work experience), and to determine whether
the claimant is capable of performing other jobs existing in significant numbers in
the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).
Barnhart v. Thomas, 540 U.S. 20, 24 – 25 (2003) (footnotes omitted).
In an action in which review of an administrative determination is sought, the agency’s
decision cannot be affirmed on a ground other than that actually relied upon by the agency in
making its decision. In Sec. & Exch. Comm’r v. Chenery Corp., 332 U.S. 194
(1947), the Supreme Court explained:
When the case was first here, we emphasized a simple but fundamental rule of
administrative law. That rule is to the effect that a reviewing court, in dealing with
a determination or judgment which an administrative agency alone is authorized
to make, must judge the propriety of such action solely by the grounds invoked by
the agency. If those grounds are inadequate or improper, the court is powerless to
affirm the administrative action by substituting what it considers to be a more
adequate or proper basis. To do so would propel the court into the domain which
Congress has set aside exclusively for the administrative agency.
Chenery Corp., 332 U.S. at 196.
The United States Court of Appeals for the Third Circuit has recognized the applicability of
this rule in the Social Security disability context. Fargnoli v. Massanari, 247 F. 3d 34, 44, n. 7
(3d Cir. 2001). Thus, the Court’s review is limited to the four corners of the ALJ’s decision.
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V.
DISCUSSION
In her brief, Plaintiff argues that the ALJ committed error requiring either reversal or
remand, because he failed to adequately assess Plaintiff’s eligibility for benefits under 20 C.F.R.,
Pt. 404, Subpt. P, App’x 1, Listing 12.05 (Mental Retardation), he failed to address evidence of
physical impairment and limitation, and he failed to provide a “particularized, function by
function” residual functional capacity (“RFC”) assessment. (ECF No. 14 at 5 – 18). Defendant
counters that the ALJ properly supported his decision with substantial evidence from the record,
and should be affirmed by this Court. (ECF No. 12 at 8 – 10). The Court agrees with Plaintiff,
in part.
With respect to Plaintiff’s first argument, it is alleged that Plaintiff met the requirements
for disability under part C of Listing 12.05. 12.05(C) provides, in relevant part that:
Mental retardation refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
…
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related
limitation of function.
20 C.F.R., Pt. 404, Subpt. P, App’x 1, Listing 12.05(C). The United States Court of Appeals for
the Third Circuit has read this listing as requiring a claimant to make two showings: (1) that
evidence demonstrates subaverage general intellectual functioning with deficits in adaptive
functioning prior to a claimant reaching age twenty-two, and (2) that evidence demonstrates an
IQ score of 60 – 70 in conjunction with a physical or other mental impairment. Cortes v.
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Comm’r Soc. Sec., 255 Fed. App’x 646, 651 (3d Cir. 2007); Stremba v. Barnhart, 171 Fed.
App’x 936, 938 (3d Cir. 2006). See also Markle v. Barnhart, 324 F. 3d 182, 187 (3d Cir. 2003).
As to the first prong of the above test, the record evidence demonstrates that Plaintiff was
first evaluated at the age of seven for intellectual deficits by a school counselor. (R. at 104). At
that time – in November of 1990 – Plaintiff was in the first grade, but was considered to have
pre-first grade-level reading, spelling, and mathematics skills. (R. at 105). Her IQ was noted to
be 67. (R. at 105, 107). Plaintiff exhibited difficulty with rote memory, concentration, forming
complete sentences, and following instructions. (R. at 107). In school, she relied upon her peers
for answers. (R. at 107).
Plaintiff was again assessed in January of 1991, this time by the school psychologist.
Findings indicated that Plaintiff was physically restless, hyperdistractible, very impulsive,
inattentive after a few seconds without repeated encouragement, and unable to follow directions.
(R. at 127). She was quick to respond to questions with, “I don’t know.” (R. at 127). Testing
revealed that Plaintiff’s verbal IQ was 77, her performance IQ was 81, and her full scale IQ was
77. (R. at 128). In terms of school achievement, independent school functioning, nonacademic
school adjustment, and perceptual-motor development, Plaintiff was considered to be “seriously
deficient” for her age. (R. at 129). In terms of language development, self-help skills, and peer
relationships, she was “below average” for her age. (R. at 129). Plaintiff’s deficits were
believed to indicate mental retardation. (R. at 131).
Plaintiff was the recipient of learning support services from that point onward. (R. at
108). As a result, she made satisfactory progress in her schooling based upon her level of
intellectual functioning. (R. at 108 – 10). In an April 1999 assessment conducted when Plaintiff
was in the ninth grade, she was noted to exhibit appropriate behavior and interacted
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appropriately with others. (R. at 109). Plaintiff required structured activities, had difficulty
working independently, and required extra time to complete assignments. (R. at 109, 112).
Adaptations required to meet Plaintiff’s academic needs were “extensive.” (R. at 110 – 11).
Nonetheless, performance in “occupation education” was above average. (R. at 109, 111).
Plaintiff was observed to be motivated, she understood directions, and she asked appropriate
questions. (R. at 109, 111). Her performance in reading and mathematics was several grade
levels below that of her peers, however. (R. at 110, 112 – 13). Plaintiff was to continue
receiving special educational support and specially designed instruction. (R. at 112 – 13). These
findings were largely reiterated in a May 2000 assessment. (R. at 115 – 26).
The only IQ testing conducted during Plaintiff’s adulthood occurred in a Psychological
Report and Individual Intellectual Evaluation completed by licensed psychologist Mark M.
Snyder, M.A. on August 21, 2009, when Plaintiff was twenty five years of age. (R. at 162).
Testing revealed that Plaintiff’s verbal IQ was 77, her performance IQ was 70, and her full scale
IQ was 72. (R. at 163). Dr. Snyder opined that testing results were an accurate assessment of
Plaintiff’s level of functioning. (R. at 163). He also opined that, within a 95% confidence
interval, Plaintiff’s full scale IQ ranged from 68 – 77. (R. at 163). 20 C.F.R., Pt. 404, Subpt. P,
App’x 1, 12.00(D)(6)(c) (Mental Disorders) states that “[i]n cases where more than one IQ is
customarily derived from the test administered, e.g., where verbal, performance, and full scale
IQs are provided in the Wechsler series, we use the lowest of these in conjunction with 12.05.”
As such, Plaintiff’s performance IQ of 70 meets the requirements of 12.05(C).
In light of this history, Plaintiff meets the first prong required by 12.05(C). Yet,
Plaintiff’s argument falters at the second prong. Proof of “a physical or other mental impairment
imposing an additional and significant work-related limitation of function,” is problematic for
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Plaintiff. While Plaintiff was found by the ALJ to have a medically determinable severe
impairment in the way of mental retardation, 12.05(C) requires the existence of either another
mental impairment, or a physical impairment. Hartzog v. Barnhart, 189 Fed. App’x 98, 100 (3d
Cir. 2006) (citing Williams v. Sullivan, 970 F. 2d 1178, 1184 (3d Cir. 1992)). Although Plaintiff
decries the ALJ’s failure to adequately discuss the RFC of Dr. Heil, in fact, there was little to
discuss.
Dr. Snyder recorded that Plaintiff dropped out of high school in the tenth grade when she
became pregnant, and that she never pursued a graduate equivalent diploma (“GED”). (R. at
162). Plaintiff’s work history was minimal. (R. at 163). Dr. Snyder observed that Plaintiff
interacted easily, followed directions, put forth effort, and made good eye contact during her
examination. (R. at 163). She did not exhibit speech or thought disorder. (R. at 163). Dr.
Snyder concluded that Plaintiff functioned within the range of mild mental retardation to
borderline intellectual functioning. (R. at 163). She had only slight limitation carrying out
detailed instructions and making judgments on simple work-related decisions. (R. at 164 – 65).
On August 27, 2009, state agency evaluator Richard A. Heil, Ph.D. completed a Mental
RFC assessment of Plaintiff. (R. at 168 – 71). Based upon his review of the case record, Dr.
Heil concluded that the evidence supported finding impairment in the way of Mental
Retardation. (R. at 168 – 71). As a result, he believed that Plaintiff would experience moderate
limitation with respect to carrying out detailed instructions, maintaining attention and
concentration for extended periods, performing activities within a schedule, maintaining regular
attendance, being punctual within customary tolerances, completing a normal workday and
workweek without interruptions from psychologically based symptoms, and performing at a
consistent pace without an unreasonable number and length of rest periods. (R. at 168 – 71). Dr.
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Heil further remarked that, in spite of her limitations, Plaintiff was capable of simple, routine,
repetitive work in a stable environment. (R. at 168 – 71).
The ALJ noted that neither Dr. Snyder nor Dr. Heil found Plaintiff to have mental
impairments outside of mental retardation or borderline intellectual functioning. (R. at 14).
Plaintiff points to no other objective medical evidence establishing other mental impairments
which could qualify Plaintiff for disability under 12.05(C). Although the ALJ’s discussion of
these doctors’ findings was concise, it was adequate for this purpose, nonetheless. Plaintiff
provides this Court with no reason to believe that a more thorough discussion would have altered
the outcome of this case.
Additionally, the failure by the ALJ to discuss the limited medical findings regarding
Plaintiff’s alleged physical impairments was not error. The record shows that Plaintiff
complained of “migraines” in September 2004. (R. at 155). She did not complain of headaches
again until March 2009. (R. at 145). An MRI of the brain in March 2010 revealed two small,
nonspecific foci of T2 hypersensitivity in the left frontal lobe of Plaintiff’s brain. (R. at 190 –
91). This may have represented migraine sequela, demyelination, or possibly vasculitis. (R. at
190 – 91). The MRI was otherwise normal. (R. at 190 – 91). Throughout Plaintiff’s medical
record, there is no evidence of a formal diagnosis of migraines by any of Plaintiff’s treating
medical sources. There were no findings of functional limitations, either. Despite her
complaints, the sparse treatment record provided no evidence of ongoing treatment for
migraines, or anything more than the use of ibuprofen for pain. Similarly, while Plaintiff
complained of back pain as late as July 2010, an MRI of the lumbar spine from November 2009
was unremarkable. (R. at 186, 197). There was no indication of treatment or notable limitation
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stemming from alleged back pain. Plaintiff’s alleged “fatigue” also lacked support in the record
which would tend to indicate impairment or limitation.
The United States Court of Appeals for the Third Circuit has held that it is not expected
that an ALJ make reference to every relevant note, and it is certainly not expected that an ALJ
discuss evidence which is not probative. Fargnoli v. Massanari, 247 F. 3d 34, 42 (3d Cir. 2001);
Johnson v. Comm’r of Soc. Sec., 529 F. 3d 198, 203 – 04 (3d Cir. 2008). Where, as here,
medical findings do not provide support for the existence of additional impairment or functional
limitations, there is simply no need for an ALJ to discuss said evidence. Hur v. Barnhart, 94
Fed. App’x 130, 133 (3d Cir. 2004); Phillips v. Barnhart, 91 Fed. App’x 775, 780 (3d Cir. 2004).
The ALJ’s omission of Plaintiff’s physical condition from his discussion was not error requiring
remand.
Plaintiff’s final contention is that the ALJ erred when deciding that Plaintiff was limited
only to unskilled work. (ECF No. 14 at 15 – 18). “Unskilled work” is defined as:
work which needs little or no judgment to do simple duties that can be learned on
the job in a short period of time. The job may or may not require considerable
strength. For example, we consider jobs unskilled if the primary work duties are
handling, feeding and offbearing (that is, placing or removing materials from
machines which are automatic or operated by others), or machine tending, and a
person can usually learn to do the job in 30 days, and little specific vocational
preparation and judgment are needed. A person does not gain work skills by doing
unskilled jobs.
20 C.F.R. §§ 404.1568(a), 416.968(a). The ALJ’s RFC assessment was no more specific than
this description. (R. at 13). The ALJ purportedly relied upon the findings of Dr. Heil to a
significant degree when formulating this RFC. (R. at 14). Yet, the ALJ failed to indicate how
“unskilled work,” as defined by regulation, accommodated findings by Dr. Heil that Plaintiff
experienced moderate limitation with respect to carrying out detailed instructions, maintaining
attention and concentration for extended periods, performing activities within a schedule,
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maintaining regular attendance, being punctual within customary tolerances, completing a
normal workday and workweek without interruptions from psychologically based symptoms, and
performing at a consistent pace without an unreasonable number and length of rest periods. (R.
at 168 – 71). While the definition of unskilled work may arguably encompass Plaintiff’s
limitations with respect to carrying out detailed instruction and maintaining attention and
concentration, it does little to address Dr. Heil’s other limitations findings.
An RFC must encapsulate credible limitations supported by the medical record. Orbin v.
Barnhart, 38 Fed. App’x 822, 823 (3d Cir. 2002) (citing Chrupcala v. Heckler, 829 F. 2d 1269,
1276 (3d Cir. 1987)). If the ALJ did not believe that all of the limitations found by Dr. Heil
required accommodation, he did not provide his rationale. This was clear error. “[T]he ALJ’s
finding of residual functional capacity must ‘be accompanied by a clear and satisfactory
explication of the basis on which it rests.’” Fargnoli, 247 F. 3d at 41 (quoting Cotter v. Harris,
642 F. 2d 700, 704 (3d Cir. 1981)). To conclude in the present case that the ALJ’s RFC
assessment was supported by substantial evidence “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)). A more
thorough explanation of the RFC assessment is necessary.
VI.
CONCLUSION
Based upon the foregoing, the court finds that substantial evidence did not support the
ALJ’s RFC assessment. “On remand, the ALJ shall fully develop the record and explain [his or
her] findings . . . to ensure that the parties have an opportunity to be heard on the remanded
issues and prevent post hoc rationalization” by the ALJ. Thomas v. Comm’r of Soc. Sec., 625 F.
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3d 798, 800 – 01 (3d Cir. 2010). See also Ambrosini v. Astrue, 727 F. Supp. 2d 414, 432 (W.D.
Pa. 2010). Testimony need not be taken, but the parties should be permitted input via
submissions to the ALJ. Id. at 801 n. 2.
Accordingly, Plaintiff’s Motion for Summary Judgment will be granted, in part, and
denied, in part; Defendant’s Motion for Summary Judgment will be denied; and, the decision of
the ALJ will be vacated and the case remanded for further consideration consistent with this
opinion. Appropriate orders follow.
/s Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc/ecf: All counsel of record.
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