MCELROY v. COMMISSIONER OF SOCIAL SECURITY
Filing
25
MEMORANDUM OPINION & ORDER re 13 granting MOTION for Summary Judgment filed by ELIZABETH A. MCELROY, 23 denying MOTION for Summary Judgment filed by COMMISSIONER OF SOCIAL SECURITY and remanding for further consideration. Signed by Magistrate Judge Robert C. Mitchell on 12/15/2015. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ELIZABETH A. MCELROY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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)
)
)
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)
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2:15-CV-326
MEMORANDUM
Mitchell, M.J.:
Presently before the Court for disposition are cross motions for summary judgment. For
the reasons set forth below, the plaintiff’s motion (ECF No. 13) will be granted, the defendant’s
motion (ECF No. 23) will be denied and the matter will be remanded to the Commissioner for
further proceedings.
On March 11, 2015, Elizabeth A. McElroy, by her counsel, filed a complaint pursuant to
Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) for review of the
Commissioner's final determination disallowing her claim for Supplemental Security Income
benefits under Sections 1614 and 1631 of the Act, as amended, 42 U.S.C. § 1381 cf.1
The instant application for Supplemental Security Income Benefits was filed on January
29, 2010 (R.262-266). On April 1, 2010, benefits were denied (R.185-189). On May 6, 2010,
the plaintiff requested a hearing (R.192-193) and pursuant to that request a hearing was held on
June 23, 2011 (R.92-109). In a decision dated June 27, 2011, benefits were denied (R.166-180).
On August 17, 2011, the plaintiff requested reconsideration of the denial of benefits (R.208) and
on January 3, 2013 the matter was remanded for further consideration (R.181-184). Another
1
The plaintiff had filed an earlier application on June 4, 2007, which was denied on October 5,
2009 (R.150-160).
hearing was conducted on June 19, 2013 (R.110-149) and benefits were denied on September 12,
2013 (R.10-24). On October 14, 2013 reconsideration was requested (R.8-9), and on January 14,
2015, the Appeals Council affirmed the prior determination (R.1-6). The instant complaint was
filed on March 11, 2015.
In reviewing an administrative determination of the Commissioner, the question before
any court is whether there is substantial evidence in the agency record to support the findings of
the Commissioner that the plaintiff failed to sustain his/her burden of demonstrating that he/she
was disabled within the meaning of the Social Security Act. Richardson v. Perales, 402 U.S. 389
(1971); Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994).
It is provided in 42 U.S.C. Section 405(g) that:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing. The findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive....
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Johnson v. Comm’r. 529 F.3d
198 (3d Cir. 2008) and the court may not set aside a decision supported by substantial evidence.
Hartranft v. Apfel, 181 F.3d 358 (3d Cir. 1999)
The purpose of the Supplemental Security Income Program is to provide additional
income to persons of limited resources who are aged, blind or disabled persons. 42 U.S.C.
§1381; Chalmers v. Shalala, 23 F.3d 752 (3d Cir. 1994). To be eligible for such benefits, an
individual’s income must not exceed a certain established maximum and he/she must fulfill
certain eligibility requirements.
As set forth in 20 C.F.R. § 416.905(a) disability is defined as:
2
the inability to do any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12
months.
In addition, a person will be considered disabled if he/she is
(a) ... permanently and totally disabled as defined under a State
plan approved under title XIV or XVI of the Social Security Act,
as in effect for October 1972; (b) ... received aid under the State
plan ... for the month of December 1973 and for at least one
month prior to July 1973; and (c) ... continue[s] to be disabled as
defined under the State plan.
20 C.F.R. § 416.907.
A physical or mental impairment is defined in 20 C.F.R. § 416.908 as an:
impairment [which] result[s] from anatomical, physiological, or
psychological abnormalities which [are demonstrated] by
medically acceptable clinical and laboratory diagnostic
techniques.
For purposes of determining whether or not the plaintiff met the eligibility requirements,
certain evidence was considered by the Commissioner.
At the hearings held on August 14, 2009, June 23, 2011 and June 19, 2013 (R.64-149),
the plaintiff appeared with counsel (R.66, 94, 112) and testified that she was born on January 18,
1959 (R.67); that she completed the twelfth grade (R.68, 95, 113); that she receives Public
Assistance (R.73) and that she worked in a fast food restaurant in 2008 and as a cafeteria worker
(R.72, 74, 95, 96).
The plaintiff also testified that she has difficulty dealing with everyday problems (R.69);
that she stopped drinking (R.70, 106); that she experiences panic attacks and depression and
suffers from a bipolar disorder (R.70, 103, 121, 140); that she has COPD, emphysema,
bronchitis, asthma, high blood pressure and reflux disease (R.70, 99, 114); that she smokes
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(R.70,78,116); that she experiences sciatica and back pain (R.71, 80, 102, 114); that she gets
dizzy and experiences hot flashes from her medications (R.74); that she can lift 3-4 pounds and
stand and sit for up to thirty minutes (R.76, 77, 118); that she has difficulty getting along with
people (R.79, 124) and that she has difficulty sleeping (R.85-86).
At the hearings, vocational experts were also called upon to testify. Her prior work was
classified as light to medium unskilled work (R.88, 108). When asked to assume a person of the
plaintiff’s age and work experience who was limited to light work with certain environmental
restrictions, the vocational experts testified that such an individual could not perform the
plaintiff’s prior work (R.88, 108, 146-147), but could perform a wide range of light work (R.89,
108, 147).
In addition, certain other evidence was considered.
The plaintiff was treated at the Greenbriar Treatment Center for alcohol abuse from
August 30, 2006 through October 12, 2006 and again from April 3, 2007 through July 26, 2007
(R.439-440).
The plaintiff was treated by Dr. Mitchell Patti on December 21, 2009 for chronic
obstructive lung disease, fatigue, tobacco use, reflux, hyperlipidemia and hypertension (R.383386).
The plaintiff was treated by Dr. Denisa Firoiu between November 11, 2009 and January
21, 2010 for an upper respiratory infection, fatigue and hypothyroidism (R.387-403).
The plaintiff received out-patient treatment at St. Margaret Memorial Hospital between
March 26, 2009 and February 1, 2010 for a degenerative knee and disc changes (R.404-417).
In a psychiatric evaluation performed on March 8, 2010, Dr. Sharon Kohnen diagnosed a
bi-polar disorder, anxiety and alcohol dependence (R.441-446).
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In a residual mental health functional capacity assessment completed on March 16, 2010,
John Rohar, Ph.D. diagnosed an affective disorder and substance addiction. Any limitations
were said to be insignificant to moderate. He concluded that the plaintiff could be gainfully
employed in competitive work (R.447-462).
In a report of a residual functional capacity assessment completed on April 1, 2010, Dr.
Juan B. Mari-Mayans indicated that the plaintiff could occasionally lift twenty pounds,
frequently lift ten pounds and stand, walk or sit for about six hours. He noted no other
restrictions, including no environmental limitations (R.463-469).
The plaintiff received treatment at Family Services of Western Pennsylvania between
December 29, 2008 and February 18, 2013 for help with coping skills (R.418-438, 470-521, 522568).
The plaintiff was treated at St. Margaret’s Hospital between May 12, 2011 and April 2,
2013 for episodes of acute kidney failure and cardiac problems. An indwelling kidney catheter
was inserted (R.573-665).
The plaintiff was treated at the Advanced Pain Medication Center between September 1,
2011 and April 22, 2013 for low back and neck pain (R.733-802).
The plaintiff was treated by Dr. Gopinath Rajupet between February 3, 2009 and May 1,
2013 for a chronic airway obstruction, stable hyperlipidemia, stable hypertension, stable
gastroesophageal reflux, alcohol abuse and back pain. Medication was prescribed. He concluded
on May 1, 2013 that the plaintiff was unable to work; that she could occasionally lift up to ten
pounds, stand or walk less than two hours and sit less than six hours; that she had depression that
caused her fatigue and required her to take rest periods during the day; that she had occasional
postural limitations and numerous environmental restrictions; that her pain had resulted in loss of
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interest in almost all activities, sleep disturbance, decreased energy, difficulty concentrating or
breathing; and that she had marked restrictions of activities of daily living, in maintaining social
functioning and in concentration, persistence or pace resulting in frequent failure to complete
tasks in a timely manner (R.358-382, 569-572, 675-732).
The plaintiff was treated at St. Margaret’s Pulmonary Consultants between December 21,
2009 and May 21, 2013 for chronic obstructive pulmonary disease and tobacco usage.
Medication was prescribed (R.803-819).
Based on the evidence presented, the Commissioner determined:
The claimant has not engaged in substantial gainful activity since January 19,
2010…
The claimant has the following severe impairments: chronic obstructive
pulmonary disease (COPD); degenerative disc disease of the cervical and lumbar
spines; and bipolar disorder…
While the record reflects evidence of hypertension and esophageal reflux, such
conditions are being managed medically and should be amenable to proper
control…
Medical records further reflect that the claimant was treated successfully for
pulmonary embolism, rhabdomyolysis, and renal insufficiency. Because these
conditions do not meet the [one year] duration requirement and because there is
no evidence they have resulted in any permanent functional limitation, the
undersigned finds that they are not severe impairments.
Lastly, undersigned considered the potential impact of obesity in causing or
contributing to coexisting impairments as required … However, there is no
evidence of any specific or quantifiable impact… Accordingly, the undersigned
finds that such impairment is nonsevere…
Listing 1.04, relating to disorders of the spine, requires degenerative disc disease
resulting in compromise of a nerve root … The alleged impairments do not meet
this Listing as physical examinations documented normal sensation and reflexes,
negative straight leg raising, and normal gait and stance…
With regard to Listing 3.02, relative to chronic pulmonary insufficiency, the
evidence fails to document the requisite levels of chronic obstructive pulmonary
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disease, chronic restrictive ventilator disease, or chronic impairment of gas
exchange due to clinically documented pulmonary disease…
The severity of the claimant’s mental impairment does not meet or medically
equal the criteria of Listing 12.04...
In activities of daily living the claimant has no restriction…
In social functioning, the claimant has moderate difficulties. The claimant
reported that she has difficulty getting along with/relating to others and that she
avoids crowds due to nervousness. However, she spends time with family and
friends regularly, shops in stores for groceries and laundry items, and attends AA
meetings…
With regard to concentration, persistence or pace, the claimant has moderate
difficulties… However, she pays bills, counts change, handles a savings account,
uses a checkbook and/or money orders, and watches television. Further, treatment
records indicate the claimant remained busy and focused on motivating her son to
secure employment and that she had been helping her father with paperwork. The
record therefore supports a finding that the claimant has no more than moderate
limitation with regard to concentration, persistence or pace.
As for episodes of decompensation, the claimant has experienced no episodes of
decompensation, which have been of extended duration.
Because the claimant’s mental impairments does not cause at least two “marked”
limitations or one “marked” limitation and “repeated” episodes of
decompensation, each of extended duration, the “paragraph B” criteria are not
satisfied…
[T]he evidence fails to establish the presence of the “paragraph C” criteria
because it does not document: repeated episodes of decompensation, each of
extended duration; a residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate; or a
current history of one or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an
arrangement…
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work … lifting up to
20 pounds occasionally and lifting/carrying up to 10 pounds frequently, except
that she must avoid concentrated exposure to extreme cold, extreme heat,
humidity, environmental irritants such as fumes, odors, dusts, and gases, poorly
ventilated areas, and chemicals. Additionally, the claimant is limited to simple,
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routine and repetitive tasks and work that is isolated from the public with only
occasional supervision and only occasional interaction with coworkers…
The allegations of disability by the claimant are out of proportion to and
inconsistent with the medical evidence of record… While treatment records
indicate the claimant was prescribed oxygen at night, recent physician notes
reflect that she “does not need any oxygen at this present time”….
A treating physician, Gopinath Rajupet, M.D., opined that the claimant had no
capacity to work secondary to back pain and depression. He further opined that
the claimant had marked restrictions of activities of daily living, marked difficulty
in maintaining social functioning, and deficiencies of concentration, persistence
or pace resulting in frequent failure to complete tasks in a timely manner due to
chronic, severe pain. Similarly, he opined in a physical ability assessment that the
claimant could perform less than sedentary work due to back pain and shortness
of breath and that she had postural and environmental limitations. The
undersigned afforded these opinions little weight because they are inconsistent
with the evidence of record, including the reported activities of the claimant.
Specifically, the record reflects that the claimant cares for her aging father,
visiting him regularly, providing support, assisting with household chores, and
helping with paperwork….
The State agency psychological consultant, John Rohar, Ph.D. determined that the
claimant could perform simple, routine, and repetitive work in a stable
environment, perform one and two step tasks, make simple decisions, ask simple
questions and accept instruction, and function in production oriented jobs
requiring little independent decision making. Additionally, he determined that the
claimant had mild restriction of activities of daily living, moderate difficulties in
maintaining social functioning, and moderate difficulties in maintaining
concentration, persistence or pace. The undersigned afforded these assessments
substantial weight because they are generally consistent with and supported by the
record as a whole…
In sum, the above residual functional capacity assessment is supported by the
evidence as a whole. For the reasons set forth above, the claimant's subjective
complaints are less than fully credible, and the objective medical evidence does
not support the alleged severity of symptoms. Accordingly, the undersigned finds
that the claimant can do work subject to the above residual functional capacity at
a level consistent with the regular and continuing performance of substantial
gainful activity…
The claimant is unable to perform any past relevant work…
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…
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If the claimant had the residual functional capacity to perform the full range of
light work, a finding of “not disabled” would be directed by Medical-Vocational
Rule 202.14. However, the claimant’s ability to perform all or substantially all of
the requirements of this level of work been impeded by additional limitations. To
determine the extent to which these limitations erode the unskilled light
occupational base, the Administrative Law Judge asked the vocational expert
whether jobs exist in the national economy for an individual with the claimant’s
age, education, work experience, and residual functional capacity. The vocational
expert testified that given all of those factors the individual would be able to
perform the requirements of representative occupations….
The claimant has not been under a disability, as defined in the Social Security
Act… (R.15-24).
Plaintiff presents three arguments challenging the determinations of the Commissioner:
1) the Administrative Law Judge (ALJ) mechanically applied the “grids” to find that the plaintiff
was not disabled, but because she fell within a “borderline age situation,” the ALJ should have
considered whether treating her as “advanced age” would have made a difference and indeed, it
would have; 2) the ALJ erred by rejecting the opinion of plaintiff’s treating physician, Dr.
Rajupet, without acknowledging that he is a Board-certified internist who has treated her for
several conditions for 7-8 years and his opinions were supported by the medical records, and the
ALJ further erred in improperly concluding that she was a caretaker for her ailing father when
the record contains little information about this issue and the ALJ did not pursue it at the hearing;
and 3) the ALJ failed to properly evaluate her subjective complaints and misconstrued the record
in concluding that the COPD was not causing her problems (and that she was no longer taking
oxygen) despite 7 documented exacerbations of this impairment between April 2011 and
December 2012, and the ALJ selectively quoted from certain records which indicated that her
neck and back pain were not causing her distress but ignored others that said otherwise and
concluded that the record did not support complaints of loss of muscle strength and sensory
deficits when she never made such complaints.
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The Commissioner responds that: 1) the plaintiff was more than four full months from
reaching the next age category and there is no consensus that this presents a “borderline age
situation” and even if it did, the ALJ did not mechanically apply the grids but relied on a
vocational expert and there are no “additional vocational adversities” to justify referring to the
older age category; 2) Dr. Rajupet’s May 1, 2013 opinion is a “checkbox” form which is entitled
to little weight, and the limitations therein are contradicted by Dr. Rajupet’s own notes, Dr.
Mari-Mayans’ residual functional capacity evaluation and Dr. Rohar’s mental assessment; and 3)
the ALJ properly found her to be not entirely credible because her complaints were not supported
by the record and an ALJ’s credibility findings are virtually unreviewable.
Borderline Age Situation
The regulations provide that:
We will not apply the age categories mechanically in a borderline situation. If you
are within a few days to a few months of reaching an older age category, and
using the older age category would result in a determination or decision that you
are disabled, we will consider whether to use the older age category after
evaluating the overall impact of all the factors of your case.
20 C.F.R. § 416.963(b). “If the ALJ does not properly apply [this section], and if proper
application of that regulation could change the ALJ’s determination, the matter must be
remanded for further consideration.” Davis v. Astrue, 2009 WL 3241853, at *7 (W.D. Pa. Oct. 5,
2009) (McVerry, J.) (citing Kane v. Heckler, 776 F.2d 1130, 1134 (3d Cir. 1985). Judge
McVerry noted that, in a non-precedential opinion, the Court of Appeals had held that 106 days
is borderline, Lucas v. Barnhart, 184 F. App’x 204 (3d Cir. 2006); that the Tenth Circuit has held
that six months is borderline, Cox v. Apfel, 1998 WL 864118, at *4 (10th Cir. Dec. 14, 1998);
that among the district courts in the Third Circuit, seven months has been held to be borderline,
Williams v. Bowen, 1987 WL 9148, at *2 (E.D. Pa. Apr. 6, 1987); and that an Appeals Council
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Interpretation “appears to establish that the Appeals Council believes there is a six-month
window in which a claimant’s situation is ‘borderline,’” Russell v. Comm’r of Social Security,
20 F. Supp. 2d 1133 (W.D. Mich. 1998). Id. In Davis, the plaintiff was 139 days from reaching
the next age category. Id. at *6.
In this case, the plaintiff was only 128 days, or slightly over four months, from reaching
age 55 as of the date of the ALJ’s decision, which falls well within the ranges that courts have
found present a borderline age situation.2 In Davis, Judge McVerry noted that, if the rule for the
age 55-and-older category had been employed, a determination of disabled would have been
compulsory. The same analysis applies to this case: the plaintiff would have been found “not
disabled” under Rule 202.14, given her age (closely approaching advanced age), high school
education and lack of transferrable skills; but using Rule 202.06 for a person of advanced age
with her same education and lack of transferrable skills would yield a finding of “disabled.” As
Judge McVerry noted in another case: “In a situation such the case sub judice, where Plaintiff
has a limited history of unskilled work and his residual functional capacity is limited to light
work, chronological age limits vocational adaptability considerably as each age category
classifies these factors differently.” Istik v. Astrue, 2009 WL 382503, at *3 (W.D. Pa. Feb. 13,
2009). Yet, in this case, the ALJ did not discuss this issue at all.
The Commissioner argues that, because the ALJ consulted a vocational expert, the grids
were not applied “mechanically” and there is no need to make any further adjustments and that,
even considering her situation as borderline, the plaintiff fails to present “additional vocational
2
By mistake, the plaintiff typed “158 days” in her brief (ECF No. 14 at 4), which would be over
five months, but there were only 128 days between the date of the ALJ’s decision (September 12,
2013) and the date the plaintiff turned 55 on January 18, 2014. The Commissioner adopts the
false 158 number in her brief (ECF No. 24 at 4), carefully stating that the plaintiff “alleges” this
information.
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adversities” that would justify using the higher age to evaluate her. The first argument is not
supported and the second one is belied by the record.
The Commissioner cites an Appeals Council interpretation (“HALLEX”), which states
that:
Additional vocational adversities are the presence of an additional impairment(s)
which infringes upon—without substantially narrowing—a claimant’s remaining
occupational base; or the claimant may be barely literate in English, have only a
marginal ability to communicate in English, or have a history of work experience
in an unskilled job(s) in one isolated industry or work setting. (An isolated
industry would be such as fishing or forestry.) Other adverse circumstances in
individual cases may justify using the higher age category.
HALLEX § II-5-3-2, 2003 WL 25498826.
The Commissioner argues that the plaintiff has no problem speaking English and does
not have a work history in an isolated industry. This is true, but she does have additional
impairments beyond those that the ALJ considered “severe” and which could infringe upon her
remaining occupational base, including: hypertension, esophageal reflux, pulmonary embolism,
rhabdomyolysis, renal insufficiency and obesity. (R.16.) Or there might be “other adverse
circumstances” that apply, but because the ALJ did not discuss this issue, the Court cannot
ascertain whether substantial evidence supports the Commissioner’s conclusion. Therefore,
remand is required for further consideration.
Treating Physician Doctrine
Pursuant to the treating physician doctrine, “a court considering a claim for disability
benefits must give greater weight to the findings of a treating physician than to the findings of a
physician who has examined the claimant only once or not at all.” Mason v. Shalala, 994 F.2d
1058, 1067 (3d Cir. 1993). The regulations provide that the ALJ should generally give more
weight to an examining source than a non-examining source, more weight to opinions from
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treating sources than non-treating sources, more weight based on the length of the physician’s
treatment, more weight to opinions that are consistent with one another, and more weight to the
opinions of specialists than those of non-specialists. 20 C.F.R. § 416.927(c).
However, this rule does not mean that the ALJ or the court is obligated to accept
conclusions of the treating physician if they are unsupported by medical evidence, and a
claimant’s residual functional capacity (RFC) is an administrative finding reserved to the
Commissioner. 20 C.F.R. § 416.927(d)(2). Moreover, the final responsibility for determining
whether a claimant is disabled is reserved exclusively to the Commissioner, not to any particular
medical source. 20 C.F.R. § 416.927(d)(1).
Plaintiff notes that Dr. Rajupet is a Board-certified internist (a specialist) who treated her
on a routine basis for COPD, chronic pain and depression since at least March 2009. On May 1,
2013, Dr. Rajupet submitted an opinion stating that she could occasionally lift/carry less than 10
pounds, stand/walk less than 2 hours and sit less than 2 hours in an 8-hour workday, that she
should limit her exposure to poor ventilation, heights, moving machinery, vibration, temperature
extremes, chemicals, wetness, dust, noise, fumes, odors, gases and humidity, that her symptoms
contribute to fatigue and necessitate rest periods, that she suffers from chronic pain syndrome
associated with loss of interest in almost all activities, sleep disturbance, decreased energy, and
difficulty concentrating or breathing, and that her pain causes marked restrictions in activities of
daily living, social functioning and concentration, persistence or pace. (R.569-572.)
These findings would lead to a conclusion that the plaintiff was disabled, but the ALJ
gave Dr. Rajupet’s opinion “little weight.” Plaintiff contends that, in so doing, the ALJ not only
failed to address most of the factors identified above, but that the factor upon which the ALJ did
rely—inconsistency with the record—contained errors. This Court agrees.
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As the plaintiff observes, the ALJ did not mention that Dr. Rajupet was a specialist, that
he had treated her for 7-8 years and that he had treated her for several conditions. Rather, the
ALJ simply discounted Dr. Rajupet’s opinions as “inconsistent with the evidence of record,
including the reported activities of the claimant. Specifically, the record reflects that the
claimant cares for her aging father, visiting him regularly, providing support, assisting with
household chores, and helping with paperwork.” (R.22.) This is a very odd statement.
As the plaintiff notes, the record contains only a few notes that she was planning to spend
the weekend with her father or that she was “caring for her disabled father” (R.524, 534), with no
specific information about what activities she was doing. Nor did the ALJ explore this topic at
the hearing. Thus, it cannot be said that substantial evidence supports this conclusion.
The Commissioner argues that the ALJ properly rejected Dr. Rajupet’s opinion because it
was a “checkbox form” which is generally considered weak evidence at best. Smith v. Astrue,
359 F. App’x 313, 316 (3d Cir. 2009) (citing Mason, 994 F.2d at 1065). In the Smith case, the
court found that a treating physician’s report that the claimant had such difficulty with movement
that she was essentially bedridden was inconsistent with a consultative examiner’s examination
and conclusion that she had full range of motion in her joints without swelling or tenderness, as
well as the treating physician’s own notes that she had a good range of motion.
In this case, by contrast, the ALJ rejected the RFC form completed by Dr. Rajupet but
relied instead on another “checkbox” form completed by a state medical consultant. Dr. Juan
Mari-Mayans checked boxes indicating that the plaintiff could lift up to 20 pounds occasionally
and 10 pounds frequently, that she could sit and stand about 6 hours in an 8-hour workday and
that she had no other limitations, including no environmental limitations. (R.464-466.) The ALJ
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imposed a number of environmental limitations based on the plaintiff’s COPD (as Dr. Rajupet
had done), raising the question of how thorough Dr. Mari-Mayans’ examination was.
Plaintiff also notes that the Appeals Council had previously remanded this case, directing
the ALJ to:
Obtain additional evidence concerning the claimant’s impairments in order to
complete the administrative record in accordance with the regulatory standards
regarding consultative examinations and existing medical evidence. The
additional evidence may include, if warranted and available, appropriate physical
and mental status consultative examinations and medical source statements about
what the claimant can still do despite the impairments.
(R.182.) That order was entered on January 3, 2013, but the opinions of Dr. Mari-Mayans and
Dr. Rohar (concerning the plaintiff’s mental RFC) were submitted in 2010, which means they
were already in the record at the time of the Appeals Council’s order and no new consultative
examinations were obtained thereafter. The ALJ did not explain how she could rely on the
opinions of these two consultative examiners to deny the plaintiff’s claim in September 2013
after the Appeals Council had remanded the case for her to obtain additional evidence in January
2013. For this reason also, the case should be remanded.
Plaintiff’s Subjective Complaints
The ALJ, as the finder of fact, is given great discretion in making credibility findings.
See Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983) (providing that credibility
determinations as to a claimant’s testimony regarding his limitations are for the ALJ to make).
“A district court will give great deference to the ALJ’s credibility determination because he or
she is best equipped to judge the claimant’s demeanor and attitude.” Mallough v. Astrue, 2009
WL 982795, at *6 (W.D. Pa. Apr. 9, 2009) (Standish, J.) (citing Reefer v. Barnhart, 326 F.3d
376, 380 (3d Cir. 2003)).
However, the ALJ is not permitted to reject a plaintiff’s subjective complaints based upon
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an incorrect reading of the record, which is what appears to have occurred in this case.
Specifically, the ALJ stated that: “While treatment records indicate the claimant was prescribed
oxygen at night, recent physician notes reflect that she ‘does not need any oxygen at this present
time.’” (R.19.) The record reflects that the plaintiff was on two liters of oxygen per night (R.803,
806, 808) and she testified to this fact at two hearings (R.99, 116) and wrote it on a medication
list (R.356). The ALJ appears to have misconstrued the statement about her not needing oxygen
“at this present time” to mean she did not need it at all, rather than that she did not need it at her
appointment.
As the plaintiff observes, the medical record also demonstrates that, between April 2011
and December 2012, she experienced at least 7 COPD exacerbations despite adherence to her
treatment regimen, which included nighttime oxygen. (R.664, 666, 685-688, 690, 693, 697, 699,
705.) The ALJ’s analysis does not consider the fact that her ability to work during such
exacerbations would have been compromised, nor does the determination discuss whether the
exacerbations would interfere with her ability to work on a regular and continuing basis.
In addition, with respect to neck and back pain, the plaintiff notes that the ALJ’s
comment that she exhibited normal muscle strength and no sensory deficits is irrelevant, because
the plaintiff never alleged that her symptoms caused a loss of muscle strength or sensory deficits.
Thus, the absence of such findings is not material.
Finally, the ALJ did not accept the plaintiff’s subjective complaints of pain. Plaintiff
argues that: “Where medical evidence does support a claimant’s complaints of pain, the
complaints should then be given ‘great weight’ and may not be disregarded unless there exists
contrary medical evidence.” Mason, 994 F.2d at 1067-68 (citations omitted). As noted above,
the ALJ did not arrange for an additional consultative examination (despite the fact that the
16
Appeals Council remand directed such action) or obtain testimony from a medical expert.
Instead, she appears to have relied on her own lay analysis of the raw medical data, which is not
permitted. See Plummer v. Apfel, 186 F.3d 422, 439 (3d Cir. 1999). For all of these reasons, the
case will be remanded to the Commissioner for further review.
An appropriate order will be entered.
17
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ELIZABETH A. MCELROY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
)
)
)
)
)
)
)
)
2:15-CV-326
ORDER
AND NOW, this 15th day of December 2015, for the reasons set forth in the
Memorandum filed contemporarily with this Order, the Plaintiff’s Motion for Summary
Judgment (ECF No. 13) is GRANTED; the Defendant’s Motion for Summary Judgment (ECF
No. 23) is DENIED, and the matter is remanded to the Commissioner is for further proceedings.
s/ Robert C. Mitchell
United States Magistrate Judge
18
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