LUDVICO v. COMMISSIONER OF SOCIAL SECURITY, No. 2:2008cv00332 - Document 12 (W.D. Pa. 2008)
Court Description: MEMORANDUM AND OPINION re 8 Motion for Summary Judgment filed by COMMISSIONER OF SOCIAL SECURITY and 6 Motion for Summary Judgment filed by LANICE R. LUDVICO. Signed by Judge Arthur J. Schwab on 12/05/08. (eca)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA 1 LANICE R. LUDVICO, Plaintiff, ) VS. Civil Action No. 08-332 1 MICHAEL J. ASTRUE, Commissioner of Social Security, 1 1 Defendant. ) MEMORANDUM OPINION Schwab, J. I. Introduction Plaintiff Lanice R. Ludvico ("Ludvico" or "plaintiff') brings this action pursuant to 42 U.S.C. $5 405(g), seeking judicial review of the final determination of the Commissioner of Social Security ("Commissioner" or "defendant") denying her application for Disability Insurance Benefits ("DIB") under Title I1 of the Social Security Act ("Act"). Consistent with the customary practice in the Western District of Pennsylvania, the parties have filed cross-motions for summary judgment based on the record developed during the administrative proceedings. Doc. Nos. 6 & 8. After careful consideration of the Commissioner's decision, the memoranda of the parties, and the evidence contained in the record, the Court finds that the decision of the Commissioner is not "supported by substantial evidence" within the meaning of § 405(g). Therefore, the Court will deny defendant's motion for summary judgment and grant the plaintiffs motion for summary judgment. The case will be remanded to the Commissioner for further consideration. 11. Procedural History Plaintiff protectively filed an application for DIB on July 27,2005, alleging disability as of January 21,2005, resulting from fibromyalgia, sleep apnea, restless leg syndrome, depression, irritable bowel syndrome and irritable urinary tract. (R. 67). Plaintiffs claims were denied on initial review, and plaintiff requested a hearing. (R. 3 1-35, 38). A hearing was held before an Administrative Law Judge ("ALJ") on April 9,2007, during which claimant was represented by counsel and appeared and testified. (R. 323-359). An impartial vocational expert ("VE") was also present and gave testimony. Id. Plaintiff is insured for DIB through December 3 1,20 10. (R. 19). On May 25,2007, the ALJ issued an unfavorable decision regarding plaintiffs claims, finding that plaintiff was able to perform a range of sedentary work and that jobs suitable for plaintiff, considering her impairments, existed in the national economy.' The ALJ concluded, therefore, that plaintiff was not disabled under the ~ c t(R. ~ . 17-26). On January 8, 2008, the Appeals Council denied plaintiffs request for review, thereby making the ALJ's decision the final decision of the Commissioner. (R. 5-7). Plaintiff subsequently commenced this action against the Commissioner, seeking judicial review of the Commissioner's decision. Plaintiff and the Commissioner filed cross-motions for summary judgment on September 22,2008. Doc. Nos. 6 & 8. These motions are the subject of this memorandum opinion. 111. Statement of the Case In his decision, the ALJ made the following findings: 1. The claimant meets the insured status requirements of the Social Security Act through December 3 1,2010. 2. The claimant has not engaged in substantial gainful activity since January 21, 2005, the alleged onset date (20 C.F.R. 404.1520(b) and 404.1571 et seq.). o or purposes of the Act, work "exists in the national economy" if it "exists in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). "The ALJ must show that there are other jobs existing in signiticant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity."Plummer v. Apfel, 186 F.3d 422,428 (3d Cir. 1999). 2 ~ individual is considered to be "disabled" if he or she is "unable to engage in any substantial gainful n 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 twelve months." 42 U.S.C. 5 1382c(a)(3)(A); see also 42 U.S.C. 5 423(d)(l)(A)(using almost identical language). The claimant has the following severe impairments: fibromyalgia, obesity with sleep apnea, anxiety with depression, post-operative residuals of a left rotator cuff injury, and degenerative disc disease of cervical spine (20 C.F.R. 404.1520(c). The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526) and not otherwise contended. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift ten pounds frequently, sit for six hours overall, alternating positions in an 8-hour workday, and stand and walk two hours in an 8-hour workday from an exertional standpoint. Nonexertionally, she can understand, remember and cany out routine instructions of entry level work. She can tolerate frequent reaching, handling, and fingering but must avoid reaching above the chest. She must avoid working around heights and temperature extremes due to sleep apnea. The claimant is unable to perform any past relevant work (20 C.F.R. 404.1 565). The claimant was born on October 27, 1957 and was 47 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date (20 C.F.R. 404.1563). The claimant has at least a high school education and is able to communicate in English (20 C.F.R. 404.1564). Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2). 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 (20 C.F.R. 404.1560(c) and 404.1566). The claimant has not been under a disability, as defined in the Social Security Act, from January 21,2005 through the date of this decision (20 C.F.R. 404.1520(g)). IV. Standards of Review Judicial review of the Commissioner's final decisions on disability claims is provided by statute. 42 U.S.C. $5 405(g)3and 1383(~)(3)~. Section 405(g) permits a District Court to review transcripts and records upon which a determination of the Commissioner is based. Because the standards for eligibility under Title I1 (42 U.S.C. $5 401-433, regarding Disability Insurance Benefits, or "DIB"), and judicial review thereof, are virtually identical to the standards under Title XVI (42 U.S.C. $5 1381-1383f, regarding Supplemental Security Income, or "SSI"), regulations and decisions rendered under the Title I1 disability standard, 42 U.S.C. 5 423, are pertinent and applicable in Title XVI decisions rendered under 42 U.S.C. 5 138 1(a). Sullivan v. Zebley, 493 U.S. 52 1, 525 n. 3 (1990); Burns v. Barnhart, 3 12 F.3d 113, 1 19 n. 1 (3d Cir. 2002). Substantial Evidence If supported by substantial evidence, the Commissioner's factual findings must be accepted as conclusive. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995); Wallace v. Secretary of HHS, 722 F.2d 1150, 1152 (3d Cir. 1983). The District Court's function is to determine whether the record, a s a whole, contains substantial evidence to support the Commissioner's findings. See Adorno v. Shalala, 40 F.3d 43,46 (3d Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389,401 (1971). The Supreme Court has explained that "substantial evidence" means "more than a mere scintilla" of evidence, and is "such relevant Section 405(g) provides in pertinent part: Any individual, after any final decision of the [Commissioner] made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action . . . brought in the District Court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business. . . 42 U.S.C. 8 405(g). Section 1383(c)(3) provides in pertinent part: The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title. 42 U.S.C. 1383(c)(3). evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). See Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); Ventura, 55 F.3d at 901 (quoting Richardson); Stunkard v. Secretary of HHS, 841 F.2d 57,59 (3d Cir. 1988). The United States Court of Appeals for the Third Circuit has referred to this standard as "less than a preponderance of the evidence but more than a mere scintilla."Burns v. Barnhart, 3 12 F.3d 113, 1 18 (3d Cir. 2002), quoting Jesurum v. Secretary o the Dep 't of Health and f Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). "A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence." Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993), quoting Kent v. Schweiker, 710 F.2d 1 10, 114 (3d Cir. 1983). The substantial evidence standard allows a Court to review a decision of an ALJ, yet avoid interference with the administrative responsibilities of the Commissioner. See Stewart v. Secretary o HEW, 714 F.2d 287,290 (3d Cir.1983). f In reviewing the record for substantial evidence, the District Court does not weigh the evidence or substitute its own conclusions for those of the fact finder. Rutherford, 399 F.3d at 552. In making this determination, the District Court considers and reviews only those findings upon which the ALJ based his or her decision, and cannot rectify errors, omissions or gaps in the medical record by supplying additional findings from its own independent analysis of portions of the record which were not mentioned or discussed by the ALJ. Fargnoli v. Massarini, 247 F.3d 34,44 n.7 (3d Cir. 2001) ("The District Court, apparently recognizing the ALJ's failure to consider all of the relevant and probative evidence, attempted to rectify this error by relying on medical records found in its own independent analysis, and which were not mentioned by the ALJ. This runs counter to the teaching of SEC v. Chenery Corp., 3 18 U.S. 80 (1943), that '[tlhe grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.' Id. at 87"; parallel and other citations omitted). Five Step Determination Process To qualify for DIB under Title I1 of the Act, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period." Kangas v. Bowen, 823 F.2d 775,777 (3d Cir. 1987); 42 U.S.C. § 423 (d)(l) (1982). Similarly, to qualify for SSI, the claimant must show "he is unable to engage in 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 twelve months." 42 U.S.C. 1383c(a)(3)(A). When resolving the issue of whether a claimant is disabled and whether the claimant is entitled to either DIB or SSI benefits, the Commissioner utilizes the familiar five-step sequential evaluation process. 20 C.F.R. §§ 404.1520 and 4.16.920 (1995). See Sullivan, 493 U.S. at 525. The United States Court of Appeals for the Third Circuit summarized this five step process in Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999): In step one, the Commissioner must determine whether the claimant is currently engaging in substantial gainful activity. 20 C .F.R. § 404.1520(a). If a claimant is found to be engaged in substantial activity, the disability claim will be denied. . . . In step two, the Commissioner must determine whether the claimant is suffering from a severe impairment. 20 C.F.R. § 404.1520(c). If the claimant fails to show that her impairments are "severe", she is ineligible for disability benefits. In step three, the Commissioner compares the medical evidence of the claimant's impairment to a list of impairments presumed severe enough to preclude any gainful work. 20 C.F.R. 404.1520(d). If a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. Stepfour requires the ALJ to consider whether the claimant retains the residual functional capacity to perform her past relevant work. 20 C.F.R. 404.1520(d). The claimant bears the burden of demonstrating an inability to return to her past relevant work. . . . If the claimant is unable to resume her former occupation, the evaluation moves to the final step vve]. At this stage, the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability. 20 C.F.R. $ 404.1520(f). The ALJ must show 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. The ALJ must analyze the cumulative effect o all the claimant's f impairments in determining whether she is capable of performing work and is not disabled. The ALJ will often seek the assistance of a vocational expert at this fifth step. . . . Plummer, 186 F.3d at 428 (italics supplied; certain citations omitted). See also Rutherford, 399 F.3d at 55 1 ("In the first four steps the burden is on the claimant to show that she (1) is not currently engaged in gainful employment because she (2) is suffering from a severe impairment (3) that is listed in an appendix (or is equivalent to such a listed condition) or (4) that leaves her lacking the RFC to return to her previous employment (Reg. fjfj 920(a) to (e)). If the claimant satisfies step 3, she is considered per se disabled. If the claimant instead satisfies step 4, the burden then shifts to the Commissioner at step 5 to show that other jobs exist in significant numbers in the national economy that the claimant could perform (Reg. fj 920(f))."). Thus, a claimant may demonstrate that his or her impairment is of sufficient severity to qualify for benefits in one of two ways: (I) by introducing medical evidence that the claimant is disabledper se because he or she meets the criteria for one or more of a number of serious Listed Impairments delineated in 20 C.F.R. Regulations No. 4, Subpt. P, Appendix 1, or that the impairment is equivalent to a Listed Impairment. See Heckler v. Campbell, 461 U.S. 458,460 (1983); Stunkard, 841 F.2d at 59; Kangas, 823 F.2d at 777 (Steps 1-3); or, (2) in the event that the claimant suffers from a less severe impairment, he or she will be deemed disabled where he or she is nevertheless unable to engage in "any other kind of substantial gainful work which exists in the national economy . . . ." Campbell, 461 U.S. at 461 (citing 42 U.S.C. fj 423 (d)(2)(A)). In order to prove disability under this second method, the plaintiff must first demonstrate the existence of a medically determinable disability that precludes him or her from returning to his or her former job (Steps 1-2,4). Stunkard, 841 F.2d at 59; Kangas, 823 F.2d at 777. Once it is shown that he or she is unable to resume his or her previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given the plaintiffs mental or physical limitations, age, education and work experience, he or she is able to perform substantial gainful activity in jobs available in the national economy. Campbell, 46 1 U.S. at 461; Boone v. Barnhart, 353 F.3d 203,205 (3d Cir. 2003); Stunkard, 842 F.2d at 59; Kangas, 823 F.2d at 777. Vocational Expert - Hypothetical Questions The determination of whether a claimant retains the RFC to perform jobs existing in the workforce at step 5 is frequently based in large measure on testimony provided by the vocational expert. Rutherford, 399 F.3d at 553, citing Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984) (citations omitted). Where a hypothetical question to the VE accurately sets forth all of a claimant's significant impairments and restrictions in activities, physical and mental, as found by the ALJ or as uncontradicted on the medical record, the expert's response as to the existence of jobs in the national economy which the claimant is capable of performing may be considered substantial evidence in support of the ALJ's findings as to the claimant's RFC. See, e.g., Burns v. Barnhart, 3 12 F.3d 113, 123 (3d Cir. 2002), citing Podedworny, 745 F.2d at 21 8 and Chrupcala v. Heckler, 829 F.2d, 1276 (3d Cir. 1987) (leading cases on the use of hypothetical questions to VES).~ also Plummer, 186 F.3d at 428 (factors to be considered in formulating hypothetical See questions include medical impairments, age, education, work experience and RFC); Boone, 353 F.3d at 205-06 ("At the fifth step of the evaluation process, 'the ALJ often seeks advisory testimony from a vocational expert."'). Objections to the adequacy of an ALJ's hypothetical questions to a vocational expert "often boil down to attacks on the RFC assessment itself." Rutherford, 399 F.3d at 554 n.8. Additionally, the ALJ will often consult the Dictionary of Occupational Titles ("DOT"), a publication of the United States Department of Labor that contains descriptions of the requirements for thousands of jobs that exist in the national economy, in order to determine whether any jobs exist that a claimant can perform. Burns v. Barnhart, 3 12 F.3d 113, 119 (3d Cir. 2002); see also id. at 126 (The "Social Security Administration has taken administrative notice of the reliability of the job information contained in the [DOT].") (citing 20 C.F.R. tj 4 16.966(d) (2002)). While an unexplained conflict between a VE's testimony and the relevant DOT job descriptions does not necessarily require reversal or remand of an ALJ's determination, the United States Court of Appeals for the Third Circuit requires the ALJ to address and resolve 5~onversely, because the hypothetical question posed to a vocational expert "must reflect all of a claimant's impairments," Chrzrpcala, 829 F.2d at 1276, where there exists on the record "medically undisputed evidence of specific impairments not included in a hypothetical question to a vocational expert, the expert's response is not considered substantial evidence." Podedworny, 745 F.2d at 2 18. any material inconsistencies or conflicts between the DOT descriptions and the VE's testimony, and failure to do so will necessitate a remand. Boone, 353 F.3d at 206. Multiple Impairments Where a claimant has multiple impairments which, individually, may not reach the level of severity necessary to qualify as a Listed Impairment, the ALJI Commissioner nevertheless must consider all of the claimant's impairments in combination to determine whether, collectively, they meet or equal the severity of a Listed Impairment. Burnett, 220 F.3d at 122 ("the ALJ must consider the combined effect of multiple impairments, regardless of their severity"); Bailey v. Sullivan, 885 F.2d 52 (3d Cir. 1989) ("in determining an individual's eligibility for benefits, the 'Secretary shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be 5 423(d)(2)(c), and 20 C.F.R. 5 5 404.1523,416.923). Section 404.1 523 of the regulations, 20 C.F.R. 9 404.1523, Multiple impairments, of such severity,"'), citing 42 U.S.C. provides: In determining whether your physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. If we do find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process. If we do not find that you have a medically severe combination of impairments, we will determine that you are not disabled (see § 404.1520). Even if a claimant's impairment does not meet the criteria specified in the listings, he or she must be found disabled if his or her condition is equivalent to a listed impairment. 20 C.F.R. 5 404.1520(d). When a claimant presents more than one impairment, "the combined effect of the impairment must be considered before the Secretary denies the payment of disability benefits." Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971) . . . ."). To that end, the ALJ may not just make conclusory statements that the impairments do not equal a listed impairment in combination or alone, but must set forth the reasons for his or her decision, and specifically explain why he or she found that the claimant's impairments did not, alone or in combination, equal in severity one of the listed impairments. Fargnoli, 247 F.3d at 40 n. 4, citing Burnett, 220 F.3d at 1 19-20. If the ALJ or Commissioner believes that the medical evidence is inconclusive or unclear as to whether the claimant is unable to return to his or her past employment or perform other substantial gainful activities, it is incumbent upon the ALJ to "secure whatever evidence [helshe] believed was needed to make a sound determination." Ferguson, 765 F.2d 36. Claimant's Subiective Complaints of Impairments and Pain An ALJ must do more than simply state factual conclusions. Instead, he or she must make specific findings of fact to support his or her ultimate findings. Stewart, 714 F.2d at 290. The ALJ must consider all medical evidence in the record and provide adequate explanations for disregarding or rejecting evidence, especially when testimony of the claimant's treating physician is rejected. See Wier on Behalfof Wier v. Heckler, 734 F.2d 955, 961 (3d Cir.1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). He or she must also give serious consideration to the claimant's subjective complaints, even when those assertions are not fully confirmed by objective medical evidence. See Mason v. Shalala, 994 F.2d 1058, 1067-68 (3d Cir. 1993); Welch v. Heckler, 808 F.2d 264, 270 (3d Cir.1986). Pain alone, if sufficiently severe, may be a disabling impairment that prevents a claimant from performing any substantial gainful work. E.g., Carter v. Railroad Retirement Board, 834 F.2d 62, 65, relying on Green v. Schweiker, 749 F.2d 1066, 1068 (3d Cir. 1984); Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979). Similarly, an ALJ must give great weight to a claimant's subjective description of his or her inability to perform even light or sedentary work when this testimony is supported by f competent evidence. Schaudeck v. Commissioner o Social Security, 181 F.3d 429,433 (3d Cir. Where a medical impairment that could reasonably cause the 1999), relying on Dobro~~olsky. alleged symptoms exists, the ALJ must evaluate the intensity and persistence of the pain or symptom, and the extent to which it affects the individual's ability to work. This obviously requires the ALJ to determine the extent to which a claimant is accurately stating the degree of pain or the extent to which he or she is disabled by it. See 20 C.F.R. tj 404.1529(c). Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). If an ALJ concludes that the claimant's testimony is not credible, the specific basis for such a conclusion must be indicated in his or her decision. See Cotter, 642 F.2d at 705. Our Court of Appeals has stated: "in all cases in which pain or other symptoms are alleged, the determination or decision rationale must contain a thorough discussion and analysis of the objective medical and the other evidence, including the individual's complaints of pain or other symptoms and the adjudicator's personal observations. The 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." Schaudeck, 181 F.3d at 433. Subjective complaints of pain need not be "fully confirmed" by objective medical evidence in order to be afforded significant weight. Smith, 637 F.2d at 972; Bittel, 441 F.2d at 1195. That is, while "there must be objective medical evidence of some condition that could reasonably produce pain, there need not be objective evidence o the pain itsev" Green, 749 F.2d f at 1070-7 1 (emphasis added), quoted in Mason, 994 F.2d at 1067. Where a claimant's testimony as to pain is reasonably supported by medical evidence, neither the Commissioner nor the ALJ may 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, 1275-76 (3d Cir. 1987); Akers v. Callahan, 997 F.Supp. 648, 658 (W.D.Pa. 1998). "Once a claimant has submitted sufficient evidence to support his or her claim of disability, the Appeals Council may not base its decision upon mere disbelief of the claimant's evidence. Instead, the Secretary must present evidence to refute the claim. See Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 198 1) (where claimant's testimony is reasonably supported by medical evidence, the finder of fact may not discount the testimony without contrary medical evidence)." Williams v. Sullivan, 970 F.3d 1178, 1 184-85 (3d Cir. 1992) (emphasis added), cert. denied 507 U.S. 924 (1993). In making his or her determination, the ALJ must consider and weigh all of the evidence, both medical and nonmedical, that support a claimant's subjective testimony about symptoms and the ability to work and perform activities, and must specifically explain his or her reasons for f rejecting such supporting evidence. Burnett v. Commissioner o Social Security, 220 F.3d 112, 119-20 (3d Cir. 2000). Moreover, an ALJ may not substitute his or her evaluation of medical records and documents for that of a treating physician; "an ALJ is not free to set his own expertise against that of a physician who presents competent evidence" by independently "reviewing and interpreting the laboratory reports . . . ." Ferguson v. Schweiker, 765 F.2d 3 1,37 (3d Cir. 1985). Medical Opinions of Treating; Sources "A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially 'when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time.' Plummer, 186 F.3d at 429 (quoting Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)) . . . ." Morales v. Apfel, 225 F.3d 3 10, 3 17 (3d Cir. 2000) (additional citations omitted). The ALJ must weigh conflicting medical evidence and can chose whom to credit, but "cannot reject evidence for no reason or for the wrong reason." Id. at 3 17, quoting Plummer, 186 F.3d at 429 (additional citations omitted). The ALJ must consider all medical findings that support a treating physician's assessment that a claimant is disabled, and can only reject a treating physician's opinion on the basis of contradictory medical evidence, not on the ALJ's own credibility judgments, speculation or lay opinion. Morales, 225 F.3d at 3 17-3 18 (citations omitted). Moreover, the Commissioner/ALJ must "explicitly" weigh all relevant, probative and available evidence. . . . [and.] must provide some explanation for a rejection of probative evidence which would suggest a contrary disposition. . . . The [Commissioner] may properly accept some parts of the medical evidence and reject other parts, but she must consider all the evidence and give some reason for discounting the evidence she rejects. Adorno, 40 F.3d at 48 (emphasis added; citations omitted). See also Fargnoli, 247 F.3d at 42-43 (although an ALJ may weigh conflicting medical and other evidence, he or she must give some indication of the evidence that he or she rejects and explain the reasons for discounting the evidence; where an ALJ failed to mention significant contradictory evidence or findings, the Court was left to wonder whether he considered and rejected them, or failed to consider them at all, giving the Court "little choice but to remand for a comprehensive analysis of the evidence consistent with the requirements of the applicable regulations and the law of this circuit. . . ."); Burnett, 220 F.3d at 12 1 ("In making a residual functional capacity determination, the ALJ must consider all evidence before him. . . . Although the ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence. . . . 'In the absence of such an indication, the reviewing Court cannot tell if significant probative evidence was not credited or simply ignored.' Cotter, 642 F.2d at 705.") (additional citations omitted). Medical Source Opinion of "Disabilitv" A medical statement or opinion expressed by a treating source on a matter reserved for the Commissioner, such as a statement that the claimant is "disabled" or "unable to work," is not dispositive or controlling. Adorno, 40 F.3d at 47-48, citing Wright v. Sulllivan, 900 F.2d 675,683 (3d Cir. 1990) ("this type of [medical] conclusion cannot be controlling. 20 C.F.R. 5 404.1527 (1989) indicates that [a] statement by your physician that you are disabled or unable to work does not mean that we will determine that you are disabled. We have to review the medical findings and other evidence that support a physician's statement that you are disabled.") (internal citations omitted). The rules and regulations of the Commissioner and the SSA make a distinction between (I) medical opinions about the nature and severity of a claimant's impairments, including symptoms, diagnosis and prognosis, what the claimant can still do despite impairments, and physical or mental restrictions, on the one hand, and (ii) medical opinions on matters reserved for the Commissioner, such as an opinion that a claimant is "disabled" or "unable to work," on the other. The latter type of medical opinions are on matters which require dispositive administrative findings that would direct a determination of disability. Compare 20 C.F.R. §404.1527(a-d) (2002) (consideration and weighing of medical opinions) with 20 C.F.R. 5404.1 527(e) (2002) (distinguishing medical opinions on matters reserved for the Commissioner). The regulations state that the SSA will "always consider medical opinions in your case record," and states the circumstances in which an opinion of a treating source is entitled to "controlling weight." 20 C.F.R. §404.1527(b), (d) (2002).~Medical opinions on matters reserved for the Commissioner are not entitled to "any special significance," although they must always be considered. 20 C.F.R. §404.1527(e)(l-2) (2002). The Commissioner's Social Security Ruling ("SSR") 96-2p, "Policy Interpretation Ruling, Titles I1 and XVI: Giving Controlling Weight to Treating Source Medical Opinions," and SSR 96-5p, "Policy Interpretation Ruling, Titles I1 and XVI: Medical Source Opinions on Issues Reserved to the Commissioner," explain in some detail the distinction between medical opinions entitled to controlling weight and those reserved to the Commissioner SSR 96-2p explains that a "finding that a treating source's medical opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may still be entitled to deference and be adopted by the adjudicator." SSR 96-2p, Purpose No. 7. Where a medical opinion is not entitled to controlling weight or special significance because it is on an issue these reserved for the Commi~sioner,~ Social Security Rulings provide that, because an adjudicator is required to evaluate all evidence in the record that may bear on the determination or decision of disability, "adjudicators must always carefully consider medical source opinions 6~ubsectiond) states: "How we weigh medical opinions. Regardless of its source, we will evaluate every ( medical opinion we receive. Unless we give a treating source's opinion controlling weight under paragraph (d)(2) of this section, we consider [a list of] factors in deciding the weight we give to any medical opinion." 20 C.F.R. 404.1527(d) (2002). Subsection (d)(2) describes the "treatment relationship," and states: Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (d)(2)(1) and (d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through (d)(6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion. 20 C.F.R. 7 5 404.1 527(d)(2) (2002) (emphasis added). SSR 96-5p lists several examples of such issues, including whether an individual's impairment(s) meets or equals in severity a Listed Impairment, what an individual's RFC is and whether that RFC prevents him or her from returning to his or her past relevant work, and whether an individual is "disabled" under the Act. about any issue, including opinions about those issues that are reserved to the Commissioner," and that such opinions "must never be ignored. . . ." SSR 96-5p, Policy Interpretation, (emphasis added). Moreover, because the treating source's opinion and other evidence is "important, if the evidence does not support a treating source's opinion on any issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of the opinion from the case record, the adjudicator must make 'every reasonable effort' to recontact the source for clarification of the reasons for the opinion." Id. A medical opinion is not entitled to controlling weight where it is not "well-supported by medically acceptable clinical and laboratory diagnostic techniques" or is "inconsistent with the other substantial evidence in [the] case record . . ." 20 C.F.R. 3 404.1527 (d)(2). See note 4, supra. Where an opinion by a medical source is not entitled to controlling weight, the following factors are to be considered: the examining relationship, the treatment relationship (its length, frequency of examination, and its nature and extent), supportability by clinical and laboratory signs, consistency, specialization and other miscellaneous factors. 20 C.F.R. 3 404.1527 (d)(l-6). State Agency Medical and Psvcholonical Consultants Medical and psychological consultants of a state agency who evaluate a claimant based upon a review of the medical record "are highly qualified physicians and psychologists who are also experts in Social Security disability evaluation. Therefore, administrative law judges must consider findings of State agency medical and psychological consultants or other program physicians or psychologists as opinion evidence, except for the ultimate determination about whether [a claimant is] disabled." 20 C.F.R. fj 404.1527 (f)(2)(I). See also SSR 96-6p: Titles I1 and XVI: Consideration of Administrative Findings of Fact by State Agency Medical and Psychological Consultants ("1. Findings of fact made by State agency medical and psychological consultants and other program physicians and psychologists regarding the nature and severity of an individual's impairment(s) must be treated as expert opinion evidence of nonexamining sources at the administrative law judge and Appeals Council levels of administrative review. 2. Administrative law judges and the Appeals Council may not ignore these opinions and must explain the weight given to these opinions in their decisions."). V. Discussion Plaintiff asserts error in the ALJ's decision in that the ALJ "mechanically" applied the Medical Vocational Guidelines (the "grids"), thereby denying plaintiff benefits despite the fact that she was within five months of her fiftieth birthday at the time the decision was rendered, thus creating a "borderline" age situation. Plaintiff further assigns error in that the hypothetical question posed to the VE did not adequately account for plaintiffs mental, or non-exertional, limitations and therefore the decision is not supported by substantial evidence. Lastly, plaintiff argues that it was error for the ALJ not to consider plaintiffs long work history and her continuing to work after the onset of her injury as part of his credibility determination. Defendant's argument is simply that the ALJ's decision is supported by substantial evidence and therefore must not be disturbed on this review. The Court does note that on October 8, 2008, defendant moved for leave to file a reply to plaintiffs motion, presumptively, this Court can only speculate, to address the borderline age argument advanced by plaintiff. Defendant's motion was granted by this Court by order of October 9,2008. Inexplicably, however, defendant's reply was never filed. The ALJ's determination that plaintiff is not disabled within the meaning of the Act was premised, in part, on the finding that plaintiff was considered a "younger individual" (age 45-49) on the alleged disability onset date. Under the Commissioner's regulations, applicants under the age of fifty (50) are considered "younger individuals" and their age is not considered a significant impediment to adapting to new work situations. 20 C.F.R. 5 416.963. However, on the date of the ALJ's decision, plaintiff was forty-nine (49) years old, and five months shy of her fiftieth birthday. Under the Commissioner's regulations, individuals age 50-54 are considered persons "closely approaching advanced age" and their age is considered together with severe impairments and limited work experience in determining the applicant's ability to adjust to other work. Id. Furthermore, the Regulations caution against mechanical application of the grids in a "borderline situation." Section 404.1563(b) provides, in pertinent part: [w]e will use each of the age categories that applies to you during the period for which we must determine if you are disabled. 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. If the ALJ does not properly apply 5 404.1563(b), and if proper application of that regulation could change the ALJ's determination, the matter must be remanded for further consideration. Kane v. Heckler, 776 F.2d 1 130, 1134 (3d Cir. 1985). Of course, there is no brightline rule for what constitutes a "borderline situation." In the Third Circuit, forty-eight days clearly creates a borderline situation. Kane, supra. In a nonprecedential opinion, the Third Circuit has held that 106 days is borderline. See Lucas v. Barnhart, 184 Fed.Appx. 204 (3d Cir. 2006). The Tenth Circuit has held that six months is borderline. See Cox v. Apfel, 1998 WL 864 1 18, at *4 (1 Oth Cir. Dec. 14, 1998)("[B]ecause plaintiff was within six months of the next age category . . . at the time the ALJ issued his decision, he erred by not addressing whether plaintiff was of borderline age before choosing a rule from the grids."). Among the District Courts in the Third Circuit, seven months has been held to create a borderline situation. See Williams v. Bowen, 1987 WL 9148, *2 (E.D.Pa. April 6, 1987). Nine months appears to represent the outer perimeter of what constitutes a borderline case in the District Courts of the Third Circuit. See Rosado v. Bowen, 1986 WL 15004, *4 (E.D.Pa. Dec. 30, 1986). Indeed, Appeals Council Interpretation 11-5-302 (effective Mar. 16, 1979) "appears to establish that the Appeals Council believes there is a six month window in which a claimant's situation is 'borderline."' See Russell v. Commissioner o Social Security, 20 f F.Supp..2d 1133 (W.D.Mich. 1998). In the absence of legislative direction or clear precedent, however, the Court is thrust into the unenviable position of peregrinating through the forest without a compass. In plaintiffs case, if the rule for the next age category were employed, and if the ALJ had made a finding that plaintiffs job skills were not transferable, a determination of disabled would have been compulsory. Specifically, under Rule 20 1.14, an individual (a) whose RFC is limited to sedentary work, (b) who is closely approaching advanced age (age 50-54), (c) who is a high school graduate or more, but whose education does not provide for direct entry into skilled work, and (d) whose previous work experience was skilled or semiskilled but the skills are not transferable to other work, is presumed to be disabled. The ALJ, however, failed to consider or address the borderline grid situation present in plaintiffs case. After careful consideration, the Court concludes that the ALJ's failure to address the issue of borderline age in this case was error because such consideration may have resulted in a change in the outcome of this case. Thus, the case will be remanded to the Commissioner for further consideration. On remand, it will be necessary for the Commissioner to make a finding with respect to the transferability of plaintiffs job skills. If the Commissioner finds that the plaintiffs job skills were not transferable, plaintiff must be found disabled under Rule 201.14 of the grids at least as of October 27, 2007, plaintiffs fiftieth birthday, because plaintiff moved into the age category of "closely approaching advanced age" while this claim was pending and before the expiration of her insured status for purposes of DIB8.See Daniels v. Apfel, 154 F.3d 1129, 1132 & n.4 (lothCir. 1998)(holding that when claim remains pending after claimant's insured status has expired, claimant's age for purposes of applying the grids is determined at the time claimant's insured status expired). In light of this disposition, the Court need not reach the other issues raised on this appeal. VI. Conclusion Plaintiffs motion for summary judgment will be granted, the Commissioner's motion for summary judgment will be denied, and the administrative decision of the Commissioner will be remanded for further consideration. An appropriate order shall issue of even date herewith. ttki J&ktrict cc: Karl E. Osterhout, 11, Esq. 1789 S. Braddock Avenue, Suite 570 Pittsburgh, PA 152 18 for the plaintiff Judge Jessica Lieber Smolar Assistant United States Attorney 8 In fact, plaintiff moved into the age category of "closely approaching advanced age" before the Appeals Council denied her request for review of the ALJ's decision on January 8, 2008. Western District of Pennsylvania U.S. Post Office & Courthouse 700 Grant Street, Suite 4000 Pittsburgh, PA 15219 for the Commissioner
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