LOCKITSKI v. ASTRUE
Filing
11
MEMORANDUM JUDGMENT ORDER denying 6 Plaintiff's Motion for Summary Judgment and granting 8 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 7/29/13. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SUSAN LOCKITSKI,
}
}
Plaintiff,
)
)
} Civil Action No. 12-132J
v.
)
}
)
)
)
}
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND NOW, this
of the parties'
~9fj;y
of July, 2013, upon due consideration
cross-motions for summary judgment pursuant to
plaintiff's request for review of the decision of the Commissioner
of
Social
plaintiff's
denying
("Commissioner" )
Security
application for disability insurance benefits under Title II of
the
Social
Security
Act
("Act"),
IT
IS
commissioner's motion for summary judgment
ORDERED
that
the
(Document No.8) be,
and the same hereby is, granted and plaintiff's motion for summary
judgment (Document No.6) be, and the same hereby is, denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an
obligation to weigh all of the facts and evidence of record and
may rej ect or discount any evidence
reasons for doing so.
Cir.1999).
substantial
findings,
(Rev. 8/82)
differently.
Plummer v. Apfel,
the ALJ explains
the
186 F.3d 422,
(3d
429
Where the ALJ's findings of fact are supported by
evidence,
even
'A072
if
if
it
a
reviewing
would have
Fargnoli v.
court
decided
Massanari,
is
bound
the
factual
247 F.3d 34,
38
by
those
inquiry
(3d Cir.
2001).
These well-established principles preclude a reversal or
remand of the ALJ I
substantial
S
decision here because the record contains
evidence
to
support
the
ALJ s
findings
I
and
conclusions.
Plaintiff protectively filed her pending application for
Title
benefits 1 on May 19, 2008, alleging a disability onset
II
date of August 10, 2007, due to major depression, valvular heart
disease
and
atrial
denied initially.
March
24,
2010,
fibrillation.
Plaintiff's
application
was
At plaintiff's request an ALJ held a hearing on
at
which
appeared and testified.
plaintiff,
On August 12,
represented
2010,
decision finding that plaintiff is not disabled.
by
counsel,
the ALJ issued a
On May 4, 2012,
the Appeals Council denied review making the ALJ's decision the
final decision of the Commissioner.
Plaintiff was 46 years old on her alleged onset date, which
is classified as a younger person under the regulations (20 C.F.R.
§404 .1563 (c) ),
decision,
and was 50 years old at the time of the ALJ's
which is classified as a person closely approaching
advanced age (20 C.F.R. §404.1563(d)).
She has at least a high
school education and has past relevant work experience as an
account executive, a salesperson and an administrative secretary,
but she has not engaged in any substantial gainful activity since
her alleged onset date.
1
The ALJ found that plaintiff met the disability insured status
requirements of the Act on her alleged onset date and has acquired
sufficient coverage to remain insured through December 31, 2012.
'l\l,A072
(Rev. 8/82)
- 2
After
testimony
reviewing
from
plaintiff's
plaintiff
and
medical
a
records
vocational
and
expert,
hearing
the
ALJ
concluded that plaintiff is not disabled within the meaning of the
Act.
The
ALJ
found
of
atrial
impairments
that
plaintiff
fibrillation,
suffers
from
rheumatic
the
heart
severe
disease,
congestive heart failure, depression and anxiety, but also found
that those impairments, alone or in combination, do not meet or
equal the criteria of any of the impairments listed at Appendix 1
of 20 C.F.R., Part 404, Subpart P.
The
ALJ
also
found
that
plaintiff
retains
the
residual
functional capacity to engage in work at the sedentary exertional
level except that: she is limited to simple, routine, repetitive
tasks j
she
requires
a
low
stress
environment,
i. e.,
a
work
environment with few changes in work processes and no fast-paced
or quota production standardsj and, she is limited to occasional
contact with the public, co-workers and supervisors.
(R.
21).
Taking into account these limiting effects, a vocational expert
identified numerous categories of jobs which plaintiff can perform
based upon
her
age,
education,
work
experience
and
residual
functional capacity, including final assembler, ticket checker and
ampoule sealer.
ALJ
found
Relying on the vocational expert's testimony, the
that,
relevant work,
although
she
plaintiff
cannot
perform
past
is capable of performing jobs existing in
significant numbers in the national economy.
Accordingly, the ALJ
concluded that plaintiff is not disabled under the Act.
'b.AO 72
(Rev. 8/82)
her
- 3
The Act defines IIdisability" 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.
The
§423 (d) (1) (A) .
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.
§423 (d) (2) (A) .
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.
§404.1520.
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,
findings:
plaintiff
(I)
the
plaintiff's mental
raises
ALJ
three
erred
at
challenges
step
3
by
to
the
ALJ's
concluding
impairments do not meet or equal a
that
listed
2 The ALJ 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.
§404.1520; Newell v. Commissioner of Social Security, 347 F.3d 541, 545
(3d Cir. 2003).
In addition, when there is evidence of a 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.
§404.1520a.
""Aon
(Rev 8/82)
- 4
impairment; (2) the ALJ improperly evaluated the medical evidence;
and, (3) the ALJ improperly equated plaintiff's ability to perform
activities of daily living with an ability to work.
the
court
is
satisfied
that
all
of
the
ALJ's
Upon review,
findings
are
supported by substantial evidence.
Plaintiff
first
argues
that
the ALJ erred at
step 3 in
finding that plaintiff's severe mental impairment of depression
does not meet or equal Listing 12.04 for affective disorders. 3
This
court
finds
no
error
in
the
ALJ's
step
3
analysis
or
conclusions.
At step 3,
impairment
the ALJ must determine whether the claimant's
matches,
is
Burnett
impairments.
or
v.
equivalent
to,
Commissioner
one
of
of
Social
Administration, 220 F.3d 112, 119 (3d Cir. 2000).
describe impairments that prevent an adult,
education,
or
work
activity.
Knepp v. Apfel,
C.F.R. §404.1520{d).
experience,
from
85
listed
Security
The listings
regardless of age,
performing
204 F.3d 78,
the
any
gainful
(3d Cir. 2000); 20
"If the impairment is equivalent to a listed
In his decision, the ALJ found that plaintiff suffers from the
severe mental impairments of depression and anxiety, but concluded that
those impairments do not meet or equal either Listing 12.04 for
affective disorders or Listing 12.06 for anxiety related disorders. The
court notes that the B criteria of 12.04 and 12.06 are identical, but
the C criteria of those listings are different.
Here, plaintiff does
not challenge the ALJ's finding that she does not meet Listing 12.06,
and there is no evidence in the record which would support a finding
that plaintiff meets the C criteria of that listing, which requires "a
complete inability to function independently outside the area of one's
home." Accordingly, the court will address only the ALJ's finding that
plaintiff does not meet Listing 12.04, recognizing that if plaintiff
meets the B criteria of Listing 12.04, she also would meet the identical
B criteria of Listing 12.06.
~A072
(Rev. 8/82)
- 5
impairment then [the claimant] is per se disabled and no further
analysis is necessary."
The
ALJ
has
the
Burnett, 220 F.3d at 119.
burden
to
identify
the
relevant
listed
impairment that compares with the claimant's impairment and must
II
fully develop the record and explain his findings at step 3,
including an analysis of whether and why
[the claimant's]
impairments ... are or are not equivalent in severity to one of
the listed impairments."
Id. at 120, n.2.
However, the burden
is on the claimant to present medical findings that show that her
impairment matches or is equal in severity to a listed impairment.
Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992).
Here, as required, the ALJ properly identified Listing 12.04
as the relevant listing that compares with plaintiff's depression
and
sufficiently explained why
that
impairment,
alone
or
in
combination with plaintiff's other impairments, does not meet or
equal that listing. (R. 18 21); see Burnett, 220 F.3dat 120, n.2.
In particular,
the ALJ determined that plaintiff failed to meet
either the "B" or "C" criteria of Listing 12.04.4
12.04 provides
that
the
"required
level
of
Because Listing
severity
for
[affective] disorders is met [only] when both the A and B criteria
..,.Aon
(Rev. 8/82)
4
The "B" criteria under 12.04 provide that the mental impairment
must result in at least two of the following: "I. Marked restriction of
activities of daily living; or 2. Marked difficulties in maintaining
social
functioning;
or
3.
Marked difficulties
in maintaining
concentration, persistence or pace; or 4. Repeated episodes of
decompensation, each of extended duration."
20 C.F.R., Part 404,
Subpart P, Appendix I, Listing 12.04B (emphasis added). Here, the ALJ
found that plaintiff has no limitation in activities of daily living;
moderate
limitations
in
social
functioning
and
concentration,
persistence or pace; and, no repeated episodes of decompensation of
extended duration since the alleged disability onset date. (R. 18-20) .
6
are satisfied, or when the C criteria are met," (emphasis added) ,
the ALJ concluded that plaintiff does not meet the listing.
Plaintiff, however, contends that there is medical evidence
in the record supporting a finding that she meets the B criteria
of Listing 12.04.5
Specifically,
plaintiff points
to:
(1)
a
report from consultative examiner Dr. Dennis Clark indicating that
she has "extreme" restrictions in her ability to perform a number
of work-related mental activities (R. 428-434)
i
residual
completed
functional
physician's
Luisito
assistant
Dingong
capacity
to
assessment
plaintiff's
suggesting
that
and,
treating
plaintiff
has
(2) a mental
by
the
physician
Dr.
an
"extreme"
impairment in her ability to perform routine tasks on a regular
and reliable basis, and on a sustained basis over an 8-hour day,
wi thout frequent absences,
as well as
"marked"
impairments in
several other areas of work-related mental activities.
(R.
664
670)
Plaintiff
argues
that
these
reports
are
sufficient
to
establish that she has "marked" limitations 6 in at least two of
the functional
areas enumerated in the B criteria to Listing
5
Although plaintiff also suggests that she meets the C criteria
of Listing 12.04, she can point to no evidence in the record to support
such a conclusion. The ALJ adequately explained why plaintiff does not
meet the C criteria,
(R. 21), and that finding is supported by
substantial evidence as outlined in the ALJ's decision.
6
Where "marked" is used as a standard for measuring the degree
of limitation, it means more than moderate but less than extreme.
12. ~OC.
"A marked limitation may arise when several activities or
functions are impaired, or even when only one is impaired, so long as
the degree of limitation is such as to interfere seriously with your
ability to function independently, appropriately, effectively and on a
sustained basis." Id.
'%AO 72
(Rev. 8/82)
- 7
but that the ALJ improperly rejected them.
12.04t
the
court
is
satisfied
that
the
ALJ
properly
Upon review
evaluated
t
the
foregoing medical reports and adequately explained why he chose
to give them little weight.
Initially, to the extent plaintiff argues that the reports
in question support a finding that she is disabled at step 3 of
the sequential evaluation process, that argument is without merit.
Neither Dr. Clark nor Dr. Dingong opined in either of the reports
at issue that plaintiff's mental impairments are sufficient to
meet
or
equal
Listing
impairments and t
opinion.
12.04,
in fact,
nor
any
of
the
other
listed
neither was asked to render such an
Instead, the questionnaires submitted to Dr. Clark and
Dr. Dingong requested their opinions on plaintiff's ability to
perform more specific work-related mental activities for purposes
of assessing plaintiff's mental residual functional capacity.
As
the
ALJ
properly
recognized
in
his
decision,
the
"limitations identified in the 'paragraph B' criteria are not a
residual functional capacity assessment but are used to rate the
severity
of
mental
impairments
21) (emphasis
added).
Instead,
at
a
steps
mental
and
2
residual
3.
ft
(R.
functional
capacity assessment is used at steps 4 and 5 and "requires a more
detailed assessment by itemizing various functions contained in
the broad categories found in paragraph B ....
If
(Id. )
Thus,
\\ [a] n assessment of your RFC complements the functional evaluation
necessary for paragraphs Band C of the listings by requiring
consideration of an expanded list of work-related capacities that
.A072
(Rev 8/82)
- 10
Plaintiff also contends that the ALJ improperly gave minimal
weight to several Global Assessment of Functioning ("GAF") scores
below 50 7 set forth in the record and placed improper emphasis on
plaintiff's better GAF scores found in the record.
The court
finds no error in the ALJ's analysis this evidence.
The
GAF
score
considers
psychological,
social
and
occupational functioning on a hypothetical continuum of mental
health.
See
American
Psychiatric
Association,
Statistical Manual of Mental Disorders (DSM-IV)
Diagnostic
and
(4 th ed. 1994).
Although the use of the GAF scale is not endorsed by the Social
Security Administration because its scores do not have any direct
correlation to the disability requirements and standards of the
Act,
See 65 Fed.Reg. 50746,
50764-65
clinical
findings
contained
in
sources,
the ALJ nevertheless
(2000),
narrative
as with any other
reports
of
medical
is to consider and weigh those
findings under the standards set forth in the regulations for
evaluating medical opinion evidence.
20 C.F.R. §404.1527(d).
The court is satisfied that the ALJ properly considered and
weighed plaintiff 's
GAF scores
in this
case.
While the ALJ
acknowledged the GAF score of 50 as recorded by Dr. Dingong in
April of 2008, as well as the two other scores in the 38-50 range,
(R. 25), he determined that those scores were inconsistent with
mul tiple GAF scores assessed by Dr.
Dingong on 10 subsequent
7
GAF scores in this range are indicative of serious symptoms
and/or serious difficulty in social, occupational or school functioning
See American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders (DSM-IV) (4 th ed. 1994).
~A072
(Rev. 8/82)
- 11
occasions between June of 2008 and July of 2009, all of which were
in the range of 65-70,
indicative of mild to moderate symptoms
and/or mild to moderate difficulty in social,
school functioning.
(R. 26).
occupational or
The ALJ considered these subsequent
scores to be more consistent with the objective evidence of record
and his decision to emphasize the more consistent scores was not
erroneous.
The court also finds no error in the ALJ's evaluation of the
opinion of Dr. Bryan, the state agency consultant.
the Regulations,
Pursuant to
state agency medical consultants are
"highly
qualified physicians ... who are also experts in Social Security
disability
Accordingly,
physicians,
while
not
the ALJ is
C.F.R.
20
evaluation."
bound
by
§404 .1527 (f) (2) (i) .
findings
to consider those
made
by
reviewing
findings as opinion
evidence, and is to evaluate them under the same standards as all
other medical opinion evidence.
SSR 96-6p.
The ALJ did so here and, having concluded that the
state agency physician's
totality of the evidence,
weight."
20 C.F.R. §404.1527(f) (2) (ii);
report
was more
consistent with the
he properly gave that opinion "some
(R.27).
In sum, the ALJ did a thorough job in his decision in setting
forth the relevant medical evidence and explaining why he rej ected
or discounted any evidence.
The court has reviewed the ALJ's
decision and the record as a whole and is satisfied that the ALJ's
evaluation of the medical evidence is supported by substantial
evidence.
"<»Aon
(Rev 8/82)
- 12
Finally,
the court finds no merit to plaintiff's argument
that the ALJ placed undue emphasis on plaintiff's ability to
engage in activities of daily living in assessing plaintiff's
subj ecti ve complaints.
As required under the regulations, the ALJ
properly considered plaintiff's subjective complaints in light of
the medical evidence and all of the other evidence of record,
including plaintiff's daily activities.
20 C.F.R. §404.1529(c);
see also SSR 96-7p.
The ALJ did a thorough job in his decision explaining why
plaintiff's statements concerning the "intensity, persistence and
limiting effects of her symptoms are not entirely credible to the
extent they are inconsistent with the above residual functional
capacity assessment.
II
(R. 23-25).
In particular, he noted that
both plaintiff's self reported activities of daily living and the
clinical and objective findings in the record are inconsistent
with
an
experiencing
individual
symptomatology.
debilitating
totally
(R. 24).
Moreover, while it is true, as plaintiff now asserts, that
sporadic and transitory activities of daily living cannot be used
to show an ability to engage in substantial gainful activity, see
Fargnoli,
247
F.3d at 40,
n.5,
the ALJ did not do so here.
Instead"
the ALJ properly considered plaintiff's al
ions in
light of not only her activities of daily living but also in light
of the medical evidence, which revealed the absence of clinical
and
objective
findings
supporting
totally debilitating symptoms.
"<»A072
(Rev. 8/82)
- 13
plaintiff's
allegations
of
It also is important to note that while the ALJ did not find
plaintiff's subjective complaints entirely credible, his decision
makes clear that, to the extent plaintiff's allegations as to the
limitations arising from her impairments are supported by the
medical
and
other
evidence,
the
ALJ
did
accommodate
limitations in his residual functional capacity finding.
those
Only to
the extent that plaintiff's allegations are not so supported did
the ALJ find them to be not credible.
It is clear from his decision that the ALJ adhered to the
appropriate
standards
complaints and it
in
evaluating
plaintiff's
not this court's function to re-weigh the
evidence and arrive at its own credibility finding.
court
must
only
subjective
determine
whether
the
ALJ's
Rather, this
credibility
determination is supported by substantial evidence and the court
is satisfied that it is.
After
carefully and methodically
considering all
medical evidence of record and plaintiff's testimony,
of
the
the ALJ
determined that plaintiff is not disabled within the meaning of
the Act.
substantial
The ALJ's findings and conclusions are supported by
evidence
and
are
not
otherwise
erroneous.
Accordingly, the decision of the Commissioner must be affirmed.
AV..~ ~
/~amond
United States District Judge
~A072
(Rev. 8/82)
- 14
cc: James R. Burn, Jr., Esq.
Abes-Baumann, P.C.
810 Penn Avenue
fth Floor
Pittsburgh, PA 15222
Stephanie Haines
Assistant U.S. Attorney
Room 224, Penn Traffic Building
319 Washington Street
Johnstown, PA 15901
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