HORAK v. COLVIN

Filing 15

MEMORANDUM AND ORDER OF COURT granting 10 Plaintiff's Motion for Summary Judgment and denying 13 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security dated 2/26/13 is reversed and this case is re manded to the Commissioner for further proceedings pursuant to sentence 4 of 42 U.S.C. Section 405(g). See Memorandum and Order for further details. Signed by Judge Gustave Diamond on 3/30/16. (gpr) (Main Document 15 replaced on 3/30/2016 to correct date of ALJ decision) (gpr)

IN THE UNITED STATES DISTRlCT COURT

FOR THE WESTERN DISTRlCT OF PENNSYL VANIA

RAEANN HORAK,
Plaintiff,

v.
CAROL YN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURlTY,
Defendant.

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Civil Action No. 14-1510

MEMORANDUM AND ORDER OF COURT
AND NOW, this 30th day of March, 2016, upon due consideration ofthe parties' crossmotions for summary judgment relating to plaintiffs request for review of the decision of the
Commissioner ofSocial Security ("Commissioner") denying plaintiff s applications for disability
insurance benefits and supplemental security income under Titles II and XVI, respectively, ofthe
Social Security Act ("Act"), IT IS ORDERED that plaintiffs motion for summary judgment
(Document No. 10) 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 of February 26, 2013, will be reversed and this case will be remanded to the
Commissioner for further proceedings consistent with this opinion pursuant to sentence 4 of 42
U.S.C. §405(g).
A reviewing court is bound to the Commissioner's findings of fact ifthey are supported by
substantial evidence even if it would have decided the factual inquiry differently. Fargnoli v.
Massanari, 247 F.3d 34,38 (3d Cir. 2001). "Substantial evidence has been defined as 'more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.'"
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Plummer v. Apfel, 186 F .3d 422, 427 (3d Cir. 1999) (citation omitted).

Despite the deference to administrative decisions required by the substantial evidence
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 her applications for disability insurance benefits and
supplemental security income on August 2,2011, alleging a disability onset date of February 12,
2001, due to, inter alia, polycystic kidney disease. I Plaintiff s applications were denied initially.
At plaintiffs request an ALJ held a hearing on January 14,2013, at which plaintiff, represented
by counsel, appeared and testified. At the hearing, plaintiff amended her alleged onset date to
August 2,2011. (R.262). On February 26,2013, the ALJ issued a decision finding that plaintiff
is not disabled within the meaning of the Act. 2 On September 17,2014, the Appeals Council
denied review making the ALl's decision the final decision of the Commissioner.

1 Polycystic kidney disease is a disorder that affects the kidneys and other organs. Clusters of
fluid-filled sacs, called cysts, develop in the kidneys and interfere with their ability to filter waste products
from the blood. The growth ofcysts causes the kidneys to become enlarged and can lead to kidney failure.
Frequent complications of polycystic kidney disease include dangerously high blood pressure
(hypertension), pain in the back or sides, blood in the urine (hematuria), recurrent urinary tract infections,
kidney stones, and heart valve abnormalities. Additionally, people with polycystic kidney disease have an
increased risk of aneurysms. https:llghr.nlm.nih.gov/condition/polycystic-kidney-disease.

2 Because plaintiffhad acquired sufficient coverage to remain insured only through June 30,2002,
her amended onset date of August 2,2011, renders her ineligible for disability insurance benefits under
Title II of the Act. (R. 12; 20). Plaintiff is not contesting her ineligibility for Title II benefits, but is
challenging the AU's denial of her application for supplemental security income under Title XVI.

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Plaintiff was 44 years old at the time of the ALl's decision and is classified as a younger
person under the regulations. 20 C.F.R. §416.963(c). She has at least a high school education
and has past relevant work experience as a packager on an assembly line, but she has not
engaged in any substantial gainful activity since her amended alleged onset date of August 1,
2011.
After reviewing plaintiffs medical records and hearing testimony from plaintiff and a
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 polycystic kidney disease ("PKD"), depression and mood disorder,
those impairments, alone or in combination, do not meet or medically 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 engage in
work at the light exertionallevel but with the following limitations: "occasional climbing,
balancing, stooping, kneeling, crouching and crawling; no hazards such as heights, moving
machinery or open flames; simple, routine, repetitive unskilled rote-type tasks; stable work
process; and likely to be off-task no more than 10% of the workday due to pain." (R. 17).
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 laundry folder, sorter and ticket taker. 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. Thus, the ALl concluded that plaintiff is not disabled.

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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).
The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability.3 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, 540 U.S. 20 (2003).
Here, the narrow issue before the court is whether the ALJ properly evaluated the
credibility of plaintiffs statements as to the intensity, persistence, and limiting effects of her
symptoms ofPKD. Because the court believes that the ALJ did not adequately address
plaintiffs specific statements regarding intermittent debilitating pain occurring every few
weeks, this case will be remanded in order to allow the ALJ to explain her reasoning more
fully.

The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) ifnot, 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; N~w~!l"'y_!j;:&mmissioner of Soci~J
Se~lIri1Y, 347 F.3d 541,545 (3d Cir. 2003). In addition, when there is evidence ofa mental impairmentthat
allegedly prevents a claimant from working, the Commissioner must follow the procedure for evaluating
mental impairments set forth in the regulations. PJ!!IDmer, 186 F .3d at 432; 20 C.F.R. §416.920a.
3

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The standards by which the ALJ is to evaluate a claimant's statements regarding her
symptoms4 are set forth in the Regulations at 20 C.F.R. §416.929. See also SSR 96-7p. The
Regulations instruct the ALJ "to consider all your symptoms, including pain, and the extent to
which your symptoms can reasonably be accepted as consistent with the objective medical
evidence, and other evidence." 20 C.F.R. §416.929(a). When the existence of a medically
determinable impairment that reasonably could be expected to produce the symptoms alleged
has been established, "the intensity, persistence, and functionally limiting effects of the
symptoms must be evaluated to determine the extent to which the symptoms affect the
individual's ability to do basic work activities." SSR 96-7p. This requires the ALJ to make a
finding about the credibility of the individual's statements about the symptoms and their
functional effects on her ability to work. Id.
It is well-settled that the ALJ is required to give significant weight to a claimant's
subjective complaints and alleged functional limitations when those allegations are supported
by competent medical evidence and, in fact, must give "serious consideration" to those
complaints even if they are not fully confirmed by the objective medical evidence. Schaudeck
v. Commissioner of Social Security, 181 F.3d 429, 433 (3d Cir.l999); Mason v. Shalala, 994
F.2d 1058, 1067-68 (3d Cir.1993). Where a claimant's testimony concerning pain is reasonably
supported by medical evidence, the ALJ may not discount the claimant's pain without contrary
medical evidence. Ferguson v. Schweiker, 765 F.2d 31,37 (3d Cir.1985); Chrupcala v.
Heckler, 829 F.2d 1269, 1275-1276 (3d Cir.l987).

"Symptoms" are defined as the claimant's "own description of your physical or mental
impairment." 20 C.F.R. §416.928(a).
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An ALJ's conclusions as to the credibility of a claimant's sUbjective complaints
generally are entitled to great deference and should not be discarded lightly, given the ALJ's
opportunity to observe the claimant's demeanor. Reefer v. Barnhart, 326 F.3d 376, 380 (3d
Cir.2003). However, in rejecting subjective complaints of pain or other limitations, an ALJ
must specify the reasons for rejecting them and the conclusion must be supported with medical
evidence in the record. Sternberg v. Commissioner of Social Security, 438 Fed Appx 89, 96
(3d Cir. 2011)(quoting Matullo v. Bowen, 926 F.2d 240,245 (3d Cir.l990). The ALJ's
reasons must be grounded in the evidence and must be sufficiently specific to indicate which
evidence has been rejected and which has been relied upon as the basis for the finding.
Schaudeck, 181 F.3d at 433 (ALJ's "rationale must include a resolution of any inconsistencies
in the evidence as a whole and set forth a logical explanation of the individual's ability to
work.").

Here, plaintiff alleges constant pain arising from her PKD which intensifies every
couple of weeks due to the bursting of cysts on her kidneys, rendering her unable to function
for 2 to 4 days at a time. (R. 36-39). While acknowledging plaintiffs assertions that she "has
been incapacitated by chronic pain and has episodes of frequent exacerbated pain," the ALJ
found that "the record does not support her assertions that her pain is constant or that she is
frequently ill." (R. 18). Accordingly, the ALJ concluded that although plaintiffs impainnents
"could reasonably be expected to cause some degree of the alleged symptoms, [plaintiffs]
statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible." (R. 19).
Upon review, the court believes that the ALJ's credibility rationale is not sufficiently
specific to indicate why she is rejecting plaintiffs testimony that she has disabling intennittent
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pain occurring every few weeks which renders her unable to function for a few days at a time.
In rejecting plaintiff's subjective statements regarding her symptoms, the AL] cited plaintiff's
infrequent medical treatment and her wide range of activities. (R. 18-19). However, while
these explanations adequately may refute plaintiff's allegations of constant debilitating pain,
neither of these reasons specifically address plaintiff's testimony about her recurring
intermittent exacerbated pain.
As to plaintiff's infrequent medical treatment, the AL] noted that plaintiff sees her
nephrologist no more than once or twice a year for routine check-ups and she does not see her
primary care physician "with any more regularity." (R. 18). However, "courts have questioned
the relevance of infrequent medical visits in determining when or whether a claimant is
disabled." Newell, 347 F.3d at 547. Moreover, SSR 96-7p states that an AL] "must not draw
any inferences about an individual's symptoms and their functional effects from a failure to
seek or pursue regular medical treatment without first considering any explanations that the
individual may provide, or other information in the case record, that may explain infrequent or
irregular medical visits or failure to seek medical treatment."
Here, plaintiff testified that her reason for not seeking medical treatment every time she
has a flare-up of exacerbated pain is because there is "nothing I can do" for the increased pain
apart from bed rest and taking Vicodin. (R.37-42). While the AL] was not required to accept
plaintiff's testimony in this regard, she was under an obligation to address it specifically and
sufficiently explain, with reference to the medical evidence, why she was rejecting plaintiff's
allegations as to her need for bed rest every two weeks.
Similarly, the AL] does not adequately explain how plaintiff's "wide range of
activities" refutes her complaints of intermittent disabling pain. The activities cited by the AL]
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include going out of town on several trips, helping plan a graduation party for her daughter,
visiting her mother, shopping at Wal-Mart, and "looking into" volunteering at an animal
shelter. (R. 19).
However, it is well-settled that sporadic and transitory activities of daily living cannot
be used to show an ability to engage in substantial gainful activity. Fargnoli, 247 F.3d at 40,
n.5.

Moreover, the ability to engage in substantial gainful activity means the ability "to

perform work on a regular and continuing basis, i.e., 8 hours a day, for 5 days a week, or an
equivalent work schedule." SSR 96-7p. In this case, merely because plaintiff is able to engage
in activities such as those cited by the ALJ when her pain is not as severe does not necessarily
refute her testimony that she has intermittent debilitating pain flare-ups every couple of weeks
for two to three days at a time.
Because the ALJ failed to explain sufficiently her rejection ofplaintiWs statements
regarding intermittent disabling pain, her credibility analysis is not supported by substantial
evidence. As a result, this case must be remanded to the Commissioner pursuant to sentence 4
of §405(g) in order for the ALJ to explain more fully her rationale, supported by medical
evidence, for rejecting plaintiffs allegations. 5

Because this court is reversing the ALJ's decision and remanding this case to the Commissioner
solely on the record that was made before the ALJ, pursuant to sentence four of §405(g), the court need not
address plaintiff's argument that she is entitled to a remand under sentence 6 of §405(g) based on new and
material evidence that was not, for good cause, previously presented to the ALJ. See Matthews v. Apfel,
239 F Jd 589 (3d Cir. 2001 )(summarizing the options available to the district court when the Appeals
Council has denied review on a social security claim). In reviewing this case, the court has not considered
the purported "new and material" evidence submitted by plaintiffand makesno determination as to whether
it would have entitled plaintiffto a remand under sentence 6 had the ALl's decision been found to have
been supported by substantial evidence under section 4 review.
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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.

s/Gustave Diamond
Gustave Diamond
United States District Judge

cc:

Stella L. Smetanka, Esq.
Neighborhood Legal Services Association
928 Penn Avenue
Pittsburgh, PA 15222
Michael Colville

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

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