POUNDS v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

MEMORANDUM AND ORDER OF COURT granting 11 Plaintiff's Motion for Summary Judgment and denying 13 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security dated 1/26/11 is vacated and this case is remanded to the Commissioner for further proceedings consistent with this opinion. See Memorandum and Order of Court for further details. Signed by Judge Gustave Diamond on 8/4/14. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BONITA L. POUNDS,
Plaintiff,

v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. 13-440

MEMORANDUM AND ORDER OF COURT
AND NOW, this

t.j ~of August, 2014, upon due consideration of the parties' cross-

motions for summary judgment relating to plaintiffs request for review of the decision of the
Commissioner of Social Security ("Commissioner") denying plaintiffs application for
supplemental security income under Title XVI ofthe Social Security Act ("Act"), IT IS ORDERED
that plaintiff s motion for summary judgment (Document No. 11) be, and the same hereby is,
granted and the Commissioner's motion for summary judgment (Document No. 13) be, and the
same hereby is, denied. The Commissioner's decision ofJanuary 26, 2011, 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 ALJ'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 her pending application for benefits on August 10,2009, alleging
a disability onset date of December 1,2008, due to depression. Plaintiff's application was denied
initially. At plaintiff's request an ALJ held a hearing on January 12, 2011, at which plaintiff,
represented by counsel, appeared and testified. On January 26, 2011, the ALJ issued a decision
finding that plaintiff is not disabled. On August 2, 2012, the Appeals Council denied review
making the ALl's decision the final decision of the Commissioner.
Plaintiff was 43 years old at the time of the ALJ's decision and is classified as a younger
person under the regulations. 20 C.F.R. §416.963(c). She has a limited education as she
completed the eleventh grade but has not obtained aGED. 20 C.F.R. §416.964(b)(3). Plaintiff
has past relevant work experience as a hostess and a telemarketer, but she has not engaged in
any substantial gainful activity since her alleged onset date.
After reviewing plaintiffs medical records and hearing testimony from plaintiff and a
vocational expert, the ALJ concluded that plaintiff is not disabled within the meaning of the
Act. The ALJ found that although the medical evidence establishes that plaintiff suffers from
the severe impairments of major depressive disorder, mood disorder, bipolar disorder, schizo­
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affective disorder and personality disorder,! those impairments, alone or in combination, do not
meet or equal the criteria of any of the impairments listed at Appendix 1 of20 C.F.R., Part 404,
Subpart P.
The ALl also found that plaintiff retains "the residual functional capacity to perform a
full range of work at all exertionallevels but with the following non-exertionallimitations: she
is limited to low-stress jobs, and cannot interact with the public." (R. 20). Taking into account
these restrictions, a vocational expert identified numerous categories ofjobs which plaintiff can
perform based upon her age, education, work experience and residual functional capacity,
including janitor, assembler and packer. Relying on the vocational expert's testimony, the ALl
found that, although plaintiff cannot perform her past relevant work, she is capable of making
an adjustment to numerous jobs existing in significant numbers in the national economy.
Accordingly, the ALl concluded that plaintiff is not disabled under 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. §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 of substantial
gainful work which exists in the national economy .... " 42 U.S.c. §1382c(a)(3)(B).

1
The AU further noted thatthe "evidence is replete with references to alcohol and cocaine use."
(R. 18). However, the AU concluded that plaintiffs history of substance abuse is not material to the
determination of disability because she would continue to have severe mental impairments even in the
absence of such use. Id.
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The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability.2 20 C.F.R.
§416.920. 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 two challenges to the ALl's detennination that plaintiff is not
disabled: (1) the ALl's residual functional capacity finding failed to account for all of
plaintiffs work-related limitations supported by the record; and, (2) the ALl failed to explain
his rejection of the opinion of the consultative examiner that plaintiff has marked and/or
extreme limitations in a number of work-related mental activities. Because the court believes
that the ALl's residual functional capacity finding is inadequate to accommodate all of
plaintiffs limitations that the ALl himself recognized, this case must be remanded for a
clarification of that finding.
At step 5 of the sequential evaluation process the ALl must show that there are other
jobs existing in significant numbers in the national economy which the claimant can perfonn
consistent with her medical impainnents, age, education, past work experience, and residual
functional capacity. 20 C.F.R. §416.920(f). Residual functional capacity is defined as the most
an individual still can do in a work setting despite the limitations caused by her impainnents.
Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001); 20 C.F.R. §416.945(a); SSR 96-8p.

2
The AU must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether she has a severe impairment; (3) if so, whether her impairment meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if not, whether the claimant's
impairment prevents her from performing her past-relevant work; and, (5) if so, whether the claimant can
perform any other work which exists in the national economy, in light of her age, education, work
experience, and residual functional capacity. 20 C.F.R. §416.920; Newell v. Commissioner of Social
Security, 347 F.3d 541, 545 (3d Cir. 2003). In addition, when there is evidence ofa mental impairment that
allegedly prevents a claimant from working, the Commissioner must follow the procedure for evaluating
mental impairments set forth in the regulations. Plummer, 186 F.2d at 432; 20 C.F.R. §416.920a.

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In assessing residual functional capacity, the ALl is to consider all of the relevant
medical and other evidence in the case record in determining the individual's ability to meet
the physical, mental, sensory and other requirements of work. 20 C.F.R. §416.945(a)(3)-(4);
SSR 96-8p. In regard to mental abilities, the ALl first must assess the nature and extent of the
claimant's mental limitations and restrictions and then determine the claimant's residual
functional capacity for work activity on a regular and continuing basis. 20 C.F.R. §416.945(c).
The ALl's residual functional capacity finding must "'be accompanied by a clear and
satisfactory explication of the basis on which it rests.'" Fargnoli, 577 F.3d at 41 (citation
omitted).
In this case, in assessing plaintiffs residual functional capacity the ALl considered all
of the relevant medical evidence including, inter alia, reports from Dr. Marvin Wheeler, the
consultative examiner, and Dr. Kerry Brace, the state agency reviewing consultant. Dr.
Wheeler, following a psychological disability evaluation conducted on November 23, 2009,
concluded that plaintiffs "ability to carry out work related activities such as understanding,
retaining and following instructions is a serious limitation as is her ability to sustain attention
to perform simple repetitive tasks at this time." (R. 365). He also opined that her "ability to
tolerate the stress and pressures associated with day to day work type activities is considered a
major limitation." (Id.) In addition, Dr. Wheeler completed a medical source statement in
which he indicated that plaintiff suffers from moderate limitations in her ability to carry out
short, simple instructions and her ability to interact appropriately with the public, marked
limitations in her ability to understand and remember detailed instructions and her ability to
interact appropriately with co-workers and supervisors, and extreme limitations in her ability to

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carry out detailed instructions, to make judgments on simple work-related decisions, and to
respond appropriately to work pressures and changes. (R. 366).
Dr. Brace, upon a review of the record including Dr. Wheeler's report, determined that
plaintiff has marked limitations in her ability to understand, remember and carry out detailed
instructions (R. 386), and moderate limitations in a number of other areas related to sustained
concentration and persistence, social interaction and adaptation. (R. 386-387). Dr. Brace
believed that Dr. Wheeler's opinion regarding plaintiffs abilities in the area of making
"performance adjustments" was fairly consistent with the other evidence in the file, but
believed that the other limitations found by Dr. Wheeler as to plaintiff s abilities in the area of
making personal and social adjustments and other work related activities "is an overestimate of
the severity of her limitations." (R. 388). Dr. Brace concluded that plaintiff "can perform
simple, routine, repetitive work in a stable environment" and that she can "understand, retain
and follow simple job instructions, i. e., perform one and two step tasks." (R. 388).
To the extent both Dr. Wheeler and Dr. Brace found "marked" limitations in plaintiff s
ability to perform any work-related functions, the ALJ found that the record did not support
those findings. (R. 28). However, the ALJ did acknowledge "limitations in social functioning
[and] concentration, persistence and pace, as reported by [plaintiffj and observed by [Dr. Brace,
Dr. Wheeler] and other examining sources," and he determined that his residual functional
capacity finding addresses those limitations by restricting plaintiff to "low stress jobs, and
cannot interact with the public." (Id.).
Although plaintiff argues that the ALJ did not adequately explain his rationale for
rejecting the marked and extreme limitations found by Dr. Wheeler, the court is satisfied that

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the ALl adhered to the appropriate standards in evaluating the medical evidence 3 and that
substantial evidence in the record supports the ALl's treatment Dr. Wheeler's report.
Dr. Brace, the state agency reviewer,4 disagreed with Dr. Wheeler's opinion of marked
and extreme limitations in multiple areas, noting that Dr. Wheeler's report "reveals only a
snapshot of [plaintiffs] functioning" and overestimates the severity of her limitations. (R.
388). Moreover, Dr. Wheeler himself acknowledged in his report that plaintiff was "limitedly
[sic] cooperative and considered less than an adequate historian," and further noted that the
"veracity of her responses appears questionable." (R. 362; 364). In addition, the ALl
emphasized that the record as a whole "documents appropriate social behavior, and intact
memory, concentration, cognition and thought processes with treatment compliance." (R.28).5

Under the Regulations, an AU is to evaluate every medical opinion received, regardless of its
source, and is required to consider numerous factors in deciding the weight to which each opinion is
entitled, taking into account numerous factors including the opinion's supportability, consistency and
specialization. 20 C.F .R. §416.927( d). Importantly, the opinion of any physician on the issue of what an
individual's residual functional capacity is or on the ultimate determination of disability never is entitled
to special significance. 20 C.F.R. §416.927(e); SSR 96-5p.
4
State agency medical consultants are "highly qualified physicians ... who are also experts in
Social Security disability evaluation." 20 C.F.R. §416.927(f)(2)(i). Accordingly, while not bound by
findings made by reviewing physicians, the AU is to consider those findings as opinion evidence, and is
to evaluate them under the same standards as all other medical opinion evidence. 20 C.F.R.
§416.927(f)(2)(ii); SSR 96-6p.

5
In this regard, Plaintiff argues that the AU failed to adhere to SSR 82-59, which governs the
evaluation of a claimant's failure to follow a prescribed treatment plan. As the Comm issioner aptly notes,
however, SSR 82-59 applies to an "individual who otherwise would be found to be under a disability" and
who "fails without justifiable cause to follow treatment" wh ich "can be expected to restore the individual's
ability to work." SSR 82-59. Under SSR 82-59, a denial of benefits for failure to follow a prescribed
treatment plan may only be issued after the AU finds a disabling impairment that precludes engaging in
any substantial gainful activity. Here, the AU did not so find and did not deny benefits due to plaintiffs
non-compliance with treatment. Instead, the AU appropriately considered plaintiffs noncompliance with
treatment in assessing the limiting effects of plaintiffs symptoms, which he is authorized to do under 20
C.F.R. §416.929(c)(3)(iv) and (v) and SSR 96-7p. (AU may consider effectiveness of medication and
other treatment in determining intensity, persistence and limiting effects of symptoms). See Vega v.
Commissioner of Social Security, 358 Fed.Appx. 372, 375 (3d Cir. 2009).
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Based upon his review of the entire record, the AL] concluded that plaintiffs
impairments, while severe, do not result in the marked and extreme limitations set forth by Dr.
Wheeler in his medical source statement. Because that opinion was not supported by the
objective medical evidence and was inconsistent with other substantial evidence in the record,
the AL] did not err in rejecting it. 20 C.F.R. §416. 927(d); SSR 96-2p.
While properly rejecting the conclusion that plaintiff suffers from marked or extreme
limitations in any work-related functions, the AL] nevertheless acknowledged that plaintiff
does have some "limitations in social functioning [and] concentration, persistence and pace" as
reported by plaintiff and observed by Dr. Wheeler and Dr. Brace, which the AL] believed he
addressed by limiting plaintiff to "low stress work" and no interaction with the public. Plaintiff
argues that these limitations are inadequate to account even for plaintiffs "moderate"
limitations in social functioning and concentration, persistence and pace which both Dr. Brace
and Dr. Wheeler recognized. The court agrees and finds that the ALl's residual functional
capacity finding and resultant hypothetical to the vocational expert do not adequately
accommodate plaintiffs moderate limitations in social functioning and concentration,
persistence and pace, necessitating a remand.
With regard to understanding, concentration and adaptability, the medical evidence in
this case from both Dr. Wheeler and Dr. Brace demonstrates that plaintiff has at least moderate
limitations in her ability: to carry out short, simple instructions; to understand, remember and
carry out detailed instructions; to maintain attention and concentration for extended periods; to
work in coordination with others without being distracted; to make simple work-related
decisions; to complete a normal workday without interruptions at a consistent pace; to respond
appropriately to changes in the work-setting; and, to set realistic goals or make plans
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independently of others. (R. 366; 387). As to social functioning and interaction, the medical
evidence from Dr. Wheeler and Dr. Brace demonstrates that plaintiff has at least moderate
limitations in her ability to interact appropriately with the general public and in her ability to
interact appropriately with supervisors and co-workers. (R. 366; 387).
In his decision, the ALJ acknowledges that plaintiff has limitations in social functioning
and concentration, persistence and pace, yet he attempted to account for all of the foregoing
difficulties merely be limiting plaintiff to "low stress work" and no interaction with the general
public. The court does not believe that the ALl's finding is adequate to account for all of
plaintiff's limitations as observed by the medical sources.
For example, while "low stress work" may be sufficient to account for plaintiff's
difficulties in adapting appropriately to work pressures or changes in a usual or routine work
setting, it certainly does not account for plaintiff's difficulties in regard to concentration,
persistence and pace as outlined in the medical source statements of Dr. Wheeler and Dr.
Brace, which, again, were accepted by the ALJ. Case law in this circuit makes clear that in
order to accommodate moderate limitations in concentration, persistence and pace, a residual
functional capacity finding should, at a minimum, contain a restriction limiting the individual,

e.g., to "simple, routine tasks." See, M., Parks v. Commissioner of Social Security, 401
Fed.Appx. 651,655-56 (3d. Cir. 2010)( hypothetical limiting claimant to performing simple,
unskilled work with restricted social interactions adequate to account for moderate limitations
in social functioning and concentration, persistence and pace); McDonald v. Astrue, 293
Fed.Appx. 941,946-47 (3d Cir. 2008)(hypotheticallimiting claimant to "simple, routine tasks"
adequate to accommodate "moderate" limitations in concentration, persistence and pace);
Menkes v. Astrue, 262 Fed.Appx. 410, 412-13 (3d Cir. 2008)(no error in hypothetical
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restricting claimant to "simple routine tasks" to account for moderate limitations in
concentration, persistence and pace).
Likewise, while acknowledging plaintiff s limitations in social functioning, and
accounting for her inability to deal with the general public in the residual functional capacity
finding, the ALJ made no accommodation for plaintiffs inability to interact appropriately with
co-workers or supervisors, limitations that also are supported by the reports of Dr. Brace and
Dr. Wheeler and which were recognized, at least implicitly, by the ALJ.
The ALJ's residual functional capacity finding in this case attempts to accommodate
plaintiffs moderate limitations in social functioning and concentration, persistence and pace
merely by limiting plaintiff "low stress work" and "no interaction with the public." This court
finds the ALl's finding inadequate to account for plaintiffs moderate limitations in those
areas. Cf., Vokes v. Colvin, 2014 WL 457763 (W.D.Pa. 2014)(S.1. Diamond) (ALJ's
restriction of plaintiff to "simple, routine, repetitive tasks, not performed in a fast-paced
production environment, involving only simple, work-related decisions, and in general,
relatively few work place changes; she is limited to occupations not involving high levels of
stress, i. e., requiring independent decision making or occupations subject to close supervision
or close interaction with co-workers or the general public" adequately accounted for moderate
limitations in social functioning and concentration, persistence and pace). Accordingly, this
case must be remanded so that the ALJ may arrive at a new residual functional capacity finding
that does account for all of plaintiff s limitations as supported by the record.
Because the ALl's hypothetical to the vocational expert in this case incorporated his
inadequate residual functional capacity finding, which failed to account for all of plaintiffs
limitations supported by the record, substantial evidence does not support the ALl's finding of
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not disabled at step 5. Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004)(a vocational expert's
response to a hypothetical that does not reflect all of a claimant's impairments that are
supported by the record cannot be considered substantial evidence supporting a step 5 finding
of not disabled). Thus, after arriving at a new residual functional capacity finding that
adequately accounts for all of plaintiff s limitations, the ALl must then determine, through the
testimony of a vocational expert, whether the claimant can perform any other work which
exists in the national economy, in light of her age, education, work experience, and her revised
residual functional capacity.
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.

/~;> )i4l-h~
Gustave Diamond
United States District Judge

cc:

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Lindsay Fulton Osterhout, Esq.
521 Cedar Way
Suite 200
Oakmont, PA 15139
Paul Kovac

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

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