ROTH v. COLVIN

Filing 14

OPINION granting 8 plaintiff's Motion for Summary Judgment and denying 12 defendant's Motion for Summary Judgment. The case is remanded to the Acting Commissioner of Social Security for further proceedings consistent's with the court's Opinion. See Opinion for further details. Signed by Judge Gustave Diamond on 9/8/14. (kw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COREY LYNN ROTH,
Plaintiff,
v.
Civil Action No. 13-617
CAROLYN W. COLVIN,
ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

OPINION
AND NOW, this
of the parties'
plaintiff's

~

1-'<--­
day of September, 2014, upon consideration

cross-motions for summary judgment pursuant to

request

for

review of

Commissioner of Social Security

the

decision of

the Acting

("Acting Commissioner")

her applications for disability insurance benefits

denying

("DIB")

and

supplemental security income ("SSI") under Title II and Title XVI,
respectively,

of the Social Security Act

("Act"),

IT IS ORDERED

that plaintiff's motion for summary judgment (Document No.8) be,
and the

same hereby is granted,

motion for summary judgment
hereby

is,

The

denied.

Commissioner pursuant
further

proceedings

to

and the Acting Commissioner's

(Document No.

case will
sentence

consistent

be
4

with

of

12)

be,

remanded
42

this

and the same
to

U. S. C.

the

Acting

§405 (g)

Memorandum

for

Judgment

Order.
When the Acting Commissioner determines that a claimant is
not "disabled" within the meaning of the Act, the findings leading
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(Rev. 8/82)

to such a conclusion must be based upon substantial evidence.

"Substantial
scintilla.

evidence

has

been defined as

'more

than a

mere

It means such relevant evidence as a reasonable mind

might accept as adequate.
(3d Cir. 1999)

plummer v. Apfel, 186 F.3d 422, 427

'11

(citation omitted) .

Despi te 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]
evidence.

decision

is

~=====-~-=====,

'11

not

supported

by

substantial

225 F.3d 310, 317 (3d Cir. 2000),

quoting, Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
evaluating
findings,

whether

substantial

"'leniency

[should]

evidence
be

shown

supports
in

an

In

ALJ's

establishing

the

claimant's disability, and ... the [Commissioner's] responsibility
to rebut it

[should]

be strictly construed.

,

Barnhart, 326 F.3d 376, 379 (3d Cir. 2003),

~~~~,

v.

1979).

Califano,

606

F.2d 403,

Acting

(3d Cir.

Dobrowolsky
These well-

dictate that the court remand this case to

established princ
the

407

Reefer v.

II

Commissioner

for

further

proceedings

as

explained

herein.
Plaintiff filed her DIB and SSI applications on April 20,
2009,

alleging di

personality

lity beginning on January 1,

disorder,

bipolar

disorder,

2001,

stomach

migraines,

self-injury issues,

syndrome.

Plaintiff's applications were denied.

due to

problems,

agoraphobia and irritable bowel
At plaintiff's

request, an ALJ held a hearing on May 23, 2011, at which plaintiff
appeared and testified.

On September 8, 2011, the ALJ issued a

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ion finding that plaintiff is not disabled.

The Appeals

Council denied plaintiff/s request for review on March 141 2013 1
making the ALJ/s decision the final dec

ion of the Commissioner.

The instant action followed.
Plaintiff l who has a high school education l was 18 years old
on her alleged onset date of disabilitYI which is classified as a
individual

younger

§§404 .1563 (c)

under

416.963 (c) .

1

relevant work experience

1

regulations.

the

Plaintiff

reviewing

not

have

any past

and she has not engaged in substantial

gainful activity at any time s
After

does

C.F.R.

20

her

plaintiff s

leged onset date.

medical

1

records

and

hearing

testimony from plaintiff and a vocational expert at the hearing
the

ALJ

concluded

that

meaning of the Act.
that

plaintiff

osteoarthritis

1

plaintiff

not

disabled within

the

Although the medical evidence established

suffers

from

severe

impairments

of

fibromyalgia l lumbar strain l thoracic painl pelvic

painl hypersensitization syndrome
1

is

1

agoraphobia

1

1

myalgias l fatigue

1

lower back

bipolar disorder l depression l major depressive

disorder l post-traumatic stress disorder l borderline personality
disorder l
impairments

adjustment
1

disorder

and

alone or in combination,

panic

attacks l

those

do not meet or equal the

teria of any of the listed impairments set forth in Appendix 1
of 20 C.F.R'I Subpart P, Regulation No.4 ("Appendix 1").
The ALJ found that plaintiff

the residual functional

capacity to perform medium work,

but she is unable to use hand

with either upper extremity.
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- 3

In addition,

plaintiff is

limited to unskilled,
making.

Finally,

low stress work and only simple decision

plaintiff

is

restricted

to

only occasional

contact with the public, supervisors and co-workers, meaning that
she

should

work

primarily

with

objects

rather

than

people

(collectively, the "RFC Finding")
Based
concluded

upon
that

the

vocational

plaintiff's

expert's

vocational

testimony,

factors

the

and

ALJ

residual

functional capacity enable her to perform work that exists in
significant numbers in the national economy, such as a box bender,
garment sorter or nut sorter.

Accordingly,

the ALJ 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 that can be expected to last for a continuous period of
at least twelve months.

42 U.S.C. §§423(d) (1) (A), 1382c(a) (3) (A).

The impairment or impairments must be so severe that the claimant
"is

not

only

unable

considering [her]

age,

to

do

[her]

previous

work

but

education and work experience,

cannot,

engage in

any other kind of substantial gainful work which exists in the
national economy
The

Social

"

42 U.S.C. §§423 (d) (2) (A), 1382c (a) (3) (B) .

Security

Regulations

delineate

a

five-step

sequential evaluation process for determining whether a claimant
is disabled.

The ALJ must assess:

(1)

whether the claimant is

currently engaged in substantial gainful acti vi ty;

(2)

whether

whether her

she

has

a

severe

impairment;

(3)

if

so,

if not,

impairment meets or equals the criteria listed in Appendix 1;
'liioA072

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(4)

if

not,

whether

the

claimant's

impairment

performing her past relevant work;

and

prevents

(5)

if so,

from

whether the

claimant can perform any other work that exists in the national
economy,

in light of her age,

residual

functional

416.920(a) (4).

education,

capacity. 1

20

work

C.F.R.

rience and

§§404.1520(a) (4),

If the claimant is found disabled or not disabled

at any step, further inquiry is unnecessary.
In this case, plaintiff argues that the ALJ
because

he

failed

to

properly

consider

and

at step 5

evaluate

medical evidence received from her treating phys

I

Wong, and from a consulting examiner, Dr. Ruthann

certain

Dr. Kevin
ine.

The

court agrees that the ALJ's evaluation of the medical evidence
submi t ted by Dr.

Wong was

incomplete,

thus

this case mus t

be

remanded to the Acting Commissioner for additional development at
step 5 of the sequential evaluation process.
Plaintiff first
consider

medical

treating

physicians.

contends that the ALJ

records
The

from

Dr.

record

Wong,

led to properly

who

contains

was

one

numerous

of

her

treatment

records from Dr. Wong for the period of time from 2008 through
2011.

(R. 467-512,

674-687, 743).

The ALJ's decision does not

discuss Dr. Wong's records which chronicle plaintiff's sustained

lResidual functional capacity is defined as that which an
individual still is able to do despite the limitations caused by her
impairments.
20 C.F.R. §§404.1545(a) (1) I 916.945(a) (1).
In assessing
a claimant's residual functional capac
the ALJ is required to
consider the claimant's ability to meet the physical, mental, sensory
and other
requirements
of
work.
20
C.F.R.
§§404.1545(a) (4),
416.945 (a) (4).
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-

5 ­

treatment history with him, thus the court is unable to discern
whether or not the ALJ considered Dr.

Wong's records and what

impact,

upon

if

any,

those

records

have

his

assessment

of

plaintiff's residual functional capacity.
The ALJ's failure to discuss Dr. Wong's treatment records is
contrary to Burnett v. Commissioner of Soc. Sec. Admin., 220 F.3d
112 (3d Cir. 2000), in which the Third Circuit held:
In making a residual functional capacity determination,
the ALJ must consider all evidence before him. Although
the ALJ may weigh the credibility of the evidence, he
must give some indication of the evidence which he
rejects and his reason(s) for
scounting such evidence.
In the absence of such an indication, the reviewing
court cannot tell if significant probative evidence was
not credited or simply ignored.
at 121

(citations omitted).

In analyzing plaintiff's case,

the ALJ did not consider Dr. Wong's treatment records, thus it is
unc

to this court whether significant probative evidence from
by the ALJ or

plaintiff's treating physician was not
whether he ignored it.
For this reason,
can

consider

and

the case must be remanded so that the ALJ

evaluate

Dr.

Wong's

determine if any information conta

treatment

records

to

therein establishes that

plaintiff has additional functional limitations which should be
incorporated into the RFC Finding.

If the ALJ determines that Dr.

Wong's treatment records establish the existence of any additional
functional limitations, he shall factor them into the assessment
of plaintiff's residual functional capacity.
ALJ

shall

obtain

additional

vocational

<!l>.A072
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In that event, the

expert

testimony

to

complete his analysis of plaintiff's case.
Plaintif f' s

next argument,

that the ALJ did not properly
I

consider the opinion of Dr.
consultative

examination

Valentine,

of

who performed a mental

plaintiff,

is

without

merit.

According to plaintiff, the ALJ incorrectly gave minimal weight to
I

Dr. Valentine's opinion that she has a marked limitation in her
ability

to

carry

out

detailed

instructions,

to

respond

appropriately to work pressures in a usual work setting and to
respond appropriately to change in a routine work setting. 2
18, 414).
Dr.

(R.

Although the ALJ gave minimal weight to this aspect of

Valentine's assessment,

adequately accounted for

the ALJ's RFC Finding nonetheless

the marked limitations Dr.

Valentine

identified by restricting plaintiff to unskilled, low stress work
and only

simple

decision making,

as

well

as

only occasional

contact with the public, supervisors and co-workers.
the

court

finds

no

error

in

the

ALJ's

Accordingly,

consideration

of

Dr.

Valentine's opinion. 3

2 Al t hough not mentioned by plaintiff, it is worth noting that Dr.
Valentine found plaintiff was not limited in remembering short, simple
instructions, she had only a slight limitation in her ability to carry
out short, simple instructions and she was only slightly limited in her
ability to interact with supervisors and co-workers.
(R. 414).
3 The court likewise finds no error in the ALJ's consideration of
GAF scores of 40-50 attributed to plaintiff, which the ALJ gave minimal
weight.
(R. 18). As an initial matter, a claimant's GAF score is not
determinative of disability. See Howard v. Commissioner of Soc. Sec.,
276 F.3d 235, 241 (6 th Cir. 2002) (\\[wJhile a GAF score may be of
considerable help to the ALJ in formulating the RFC, it is not essential
to the RFC's accuracy.
Thus, the ALJ's failure to reference the GAF
score in the RFC, standing alone, does not make the RFC inaccurate.") i
Wind v. Barnhart, 2005 WL 1317040, *6 n.5 (11 th Cir. 2005) (noting that
the Commissioner has declined to endorse the GAF scale for use in the
Social Security and SSI disability programs).
Despite the fact that
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(Rev. 8/82)

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7 ­

For the foregoing reasons t plaintiffts motion for summary
judgment will be granted t the Acting Commissionerts motion for
summary judgment will be denied t and this case will be remanded
to the Acting Commissioner for further proceedings consistent with
this Opinion.

/

~~
Gustave Diamond
United States District Judge

cc: Jon M. Lewis, Esq.
230 South Main Street
205 Cout
Building
Greensburg t PA 15601
Paul Kovac
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

one's GAP score alone is not controlling, the ALJ in this case discussed
plaintiff's GAP scores and explained that he gave them minimal weight
because they were not consistent with other mental health evidence in
the record.
(R. 1 8). There was nothing improper c oncerning the ALJ's
analysis.
""Aon
(Rev 8/82)

8 -