CAIN v. COMMISSIONER OF SOCIAL SECURITY

Filing 20

MEMORANDUM AND ORDER OF COURT granting 15 Plaintiff's Motion for Summary Judgment and denying 17 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security dated 1/27/12 is vacated and case remanded to Commissioner for further proceedings. See Memorandum and Order for further details. Signed by Judge Gustave Diamond on 9/29/14. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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

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Civil Action No. 13-663

MEMORANDUM AND ORDER OF COURT
AND NOW, this

dcr ~y of September, 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 plaintiffs motion for summary judgment (Document No. 15) be, and the same hereby is,
granted and the Commissioner's motion for summary judgment (Document No. 17) be, and the
same hereby is, denied. The Commissioner's decision ofJanuary 27,2012, 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 tmore than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate. ttt 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 May 10, 2010, alleging
a disability onset date of October 1, 2009, due to, inter alia, lower back pain, leg pain, diabetes,
depression and anxiety. Plaintiffs application was denied initially. At plaintiffs request an ALJ
held a hearing on December 20, 2011, at which plaintiff, represented by counsel, appeared and
testified. On January 27, 2012, the ALJ issued a decision finding that plaintiff is not disabled. On
March 25, 2013, the Appeals Council denied review making the ALl's decision the final decision
of the Commissioner.
Plaintiff was 41 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 tenth-grade education which is
classified as limited. 20 C.F.R. §416.964(b)(3). Plaintiff has past relevant work experience as
a cashier, home attendant and dispatcher/secretary, 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
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the severe impairments of degenerative disc and joint disease of the lumbar and cervical spine,
diabetes mellitus, obesity, hearing loss and major depressive disorder with anxiety, 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 ALJ also found that plaintiff retains the residual functional capacity to perform
sedentary work but with a number of physical and environmental restrictions1 as well as the
following mental limitations: she "can perform simple, routine, repetitive tasks in a work
environment free of fast-pace production requirements involving only simple work-related
decisions and routine workplace changes." (R. 18). In response to a hypothetical question
taking into account these restrictions, a vocational expert identified numerous categories of
jobs which plaintiff can perform based upon her age, education, work experience and residual
functional capacity, including document preparer, ticket taker, gate guard and charge account
clerk. Relying on the vocational expert's testimony, the ALJ 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 ALJ 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,

Plaintiff does not challenge the ALJ's residual functional capacity finding with regard to
exertionallimitations and restrictions or environmental restrictions. Her only challenge is to the ALJ's
finding as it relates to limitations arising from her mental impairments.
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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).
The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability? 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 essentially raises two challenges to the ALl's determination that plaintiff
is not disabled: (1) the ALl improperly weighed the medical evidence and also failed to
discuss plaintiffs Global Assessment of Functioning ("GAF") scores; and, (2) the ALl's
residual functional capacity finding failed to account for all of plaintiffs work-related
limitations supported by the record. Because the ALl's evaluation of the medical evidence is
not clear enough to permit this court to undertake meaningful judicial review, and because the
court agrees with plaintiff that the ALl's residual functional capacity finding is inadequate to
accommodate all of plaintiffs limitations which the ALl apparently found, this case must be
remanded for additional proceedings.
It is axiomatic in social security cases that, although the ALl may weigh the credibility

of the evidence, she must give some indication of the evidence that she rejects and the reasons
for discounting that evidence. Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001). Where

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(a)(4); 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.
2

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the ALJ fails to consider and explain the reasons for discounting all of the relevant evidence
before her, she has not met her 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).
Plaintiffs first argument is that the ALJ improperly evaluated the medical evidence3 , in
particular by giving "no weight" to the report from the consultative examiner, Dr. David
Prybock. (R. 361-369). In the decision, the ALJ briefly summarized Dr. Prybock's findings
and acknowledged that "Dr. Prybock noted problems with [plaintiffs] ability to interact with
the public" and that he "assigned a GAF score of 45." (R. 20). The ALJ acknowledged that the
report showed 'severe symptoms" but "none that is not accommodated in the residual
functional capacity established here" and concluded that "no weight is afforded these
conclusions insofar as they suggest an inability to perform all work activity, particularly for any
12-month period." (R. 20).
Although the ALJ addressed Dr. Prybock's report in her decision, her analysis is
insufficient to permit this court to ascertain what portion or portions of Dr. Prybock's report she
was assigning "no weight" and for what reason. The court has reviewed Dr. Prybock's report
and can glean no suggestion from it that plaintiff is "unable to perform all work activity."
Possibly then, the ALJ is rejecting Dr. Prybock's opinion that plaintiff has marked to moderate
limitations in various areas of social functioning, as she declined to include any limitations in
social functioning in her residual functional capacity finding. However, that is not clear either,

3 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( c). 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(d); SSR 96-5p.

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as earlier in the opinion the ALJ found that plaintiff does have moderate limitations in social
functioning. 4 (R 17). Adding to the confusion is the fact that the state agency reviewing
psychiatrist's report,5 which the ALJ indicated was "consistent with the decision and assisted
me in coming to the conclusion as to [plaintiffs] residual functional capacity" (R. 21), rated
plaintiff as having only mild limitations in social functioning.

CR. 380).

Thus, although previously having found that plaintiff has moderate difficulties in social
functioning, in evaluating the medical evidence the ALJ apparently rejected the opinion of Dr.

Pry bock, which would tend to support a finding of at least moderate difficulties in that area,
while apparently accepting the opinion ofthe state agency reviewing psychiatrist, who
indicated only mild difficulties in social functioning. Because the ALJ failed to explain
adequately her "conciliations and rejections" of the relevant medical evidence, this court cannot
undertake meaningful judicial review to determine whether her evaluation is supported by
substantial evidence, necessitating a remand for clarification.
The court also agrees with plaintiff that on remand the ALJ needs to discuss in greater
detail plaintiffs recorded GAF scores6 in the range of 45-48, which indicate "serious"

4 The court notes that in making this finding at step 3, the ALJ does not mention specifically Dr.
Prybock's assessment nor the assessment of the state agency reviewing psychiatrist.
5
State agency medical consultants are "highly qualified physicians ... who are also experts in
Social Security disability evaluation." 20 C.F.R. §416.927(e)(2)(i). Accordingly, while not bound by
findings made by reviewing physicians, the ALJ 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(e)(2)(ii); SSR 96-6p.

The OAF score considers psychological, social and occupational functioning on a hypothetical
continuum of mental health. See American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV) (4th ed. 1994). Although the use of the OAF scale is not endorsed by the
Social Security Administration because its scores do not have any direct correlation to the disability
requirements and standards ofthe Act, See 65 Fed.Reg. 50746, 50764-65 (2000), as with any other clinical
findings contained in narrative reports of medical sources, the ALJ nevertheless is to consider and weigh
those findings under the standards set forth in the regulations for evaluating medical opinion evidence. 20
C.F.R. §416.927(c).
6

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symptoms or "serious" impairment in social and occupational functioning, as assessed by both
Dr. Prybock, (R. 369), and in the progress notes of Family Services of Pennsy lvania. (R.
530-547). Here, the ALl acknowledged the scores of 45 and 48 but gave no clear indication
why she was rejecting them. On remand, the ALl is not obligated to accept these scores as
conclusive of "serious" limitations; indeed, subsequent progress notes from Family Services
assess improved scores of 50,53 and 55 (R. 533; 536; 539), ratings indicative of "moderate"
symptoms or "moderate" difficulty in social or occupational functioning. However, if she
rejects them she must explain her reasons for doing so.
Finally, after clarifying her evaluation of the medical evidence, including plaintiffs
GAF scores, the ALl must re-assess plaintiffs residual functional capacity? As already noted,
the ALl found that plaintiff has moderate limitations in social functioning and in concentration,
persistence and pace. (R. 17). While the ALl's residual functional capacity finding accounts
for plaintiffs moderate difficulties in concentration, persistence and pace by limiting her to
"simple, routine, repetitive tasks in a work environment free of fast pace production
requirements involving only simple work-related decisions and routine workplace changes" (R.

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At step 5 of the sequential evaluation process the AU must show that there are other jobs
existing in significant numbers in the national economy which the claimant can perform consistent with
her medical impairments, age, education, past work experience, and residual functional capacity. 20 C.F.R.
§416.920(g). Residual functional capacity is defined as the most an individual still can do in a work setting
despite the limitations caused by her impairments. Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001);
20 C.F.R. §416.945(a); SSR 96-8p. In assessing residual functional capacity, the AU 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 AU 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 AU's residual functional capacity finding
must '''be accompanied by a clear and satisfactory explication ofthe basis on which it rests.'" Fargnoli, 577
F.3d at 41 (citation omitted).
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18), 8 it does not include any restrictions to accommodate plaintiffs moderate difficulties in
social functioning.
The Commissioner acknowledges that plaintiff "is technically correct" that the ALl
neglected to include any limitations relating to social functioning in the residual functional
capacity finding, but suggests that this was a mere "oversight" because the ALl's hypothetical
to the vocational expert specified that the "work should be isolated from the public with only
occasional supervision and only occasional interaction with coworkers." (R. 47). However,
the hypothetical to which the Commissioner now refers was one of two hypotheticals that the
ALl posited to the vocational expert. The second hypothetical, like the ALl's ultimate residual
functional capacity finding, omitted any limitations relating to social functioning, and it was the
vocational expert's response to this second hypothetical upon which the ALl relied in finding
that plaintiff could perform the jobs of document preparer, ticket taker, gate guard and charge
account clerk. (R. 49-50).
Moreover, the assessment of the state agency reviewing psychiatrist, which the ALl
purportedly accepted, suggests that plaintiff also is moderately limited in the ability to perform
activities within a schedule, maintain regular attendance, and be punctual within customary
tolerances, as well as the ability to complete a normal workday and workweek without

Plaintiff's argument that the ALJ' s residual functional capacity finding is inadequate to account
for plaintiff's moderate difficulties in concentration, persistence or pace is without merit. 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, e.g., Parks v. Commissioner of Social Security, 401
Fed.Appx. 651,655·56 (3d. Cir. 2010)( hypotheticallimitingclaimantto 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)(hypothetical limiting 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 restricting claimant to "simple routine tasks" to account for moderate
limitations in concentration, persistence and pace).
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interruptions and to perform at a consistent pace without an unreasonable number and length of
rest periods. (R. 384-385). The ALJ does not discuss these limitations in her decision in
evaluating the state agency psychiatrist's report, so this court is unable to determine whether
the ALl's omission of any limitations relating to these difficulties is supported by substantial
evidence.
On remand, after are-evaluation of the medical evidence the ALJ must re-assess
plaintiffs residual functional capacity finding, accounting for all of plaintiffs limitations that
are supported by the record and 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 revised residual functional capacity.
Accordingly, for the foregoing reasons, plaintiff's 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

cc:

Lindsay Fulton Osterhout, Esq.
521 Cedar Way
Suite 200
Oakmont, PA 15139
Colin Callahan

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, P A 15219

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