MCDONNELL v. ASTRUE, No. 2:2010cv00222 - Document 11 (W.D. Pa. 2010)

Court Description: MEMORANDUM OPINION and ORDER denying 9 Motion for Summary Judgment and granting 7 Motion for Summary Judgment; In accordance with the fourth sentence of 42 U.S.C. §405(g), the administrative decision of the Commissioner of Social Security is hereby VACATED and the case will be remanded to the Commissioner for further administrative proceedings consistent with this memorandum opinion. Signed by Chief Judge Gary L. Lancaster on 10/5/10. (map)

Download PDF

MCDONNELL v. ASTRUE Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DION A. MCDONNELL, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY, Defendant. Civil Action No. 10-222 Chief Judge Lancaster MEMORANDUM OPINION AND ORDER OF COURT Gary L. Lancaster, Chief Judge I. October s, 2010 Introduction Plaintiff Dion McDonnell pursuant to 42 U.S.C. §§ ("McDonnell") brings this action 405(g) and 1383(c) (3), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIS") and supplemental security income ("SSI") benefits under Titles II and XVI of the Social Security Act ("Act") [42 U.S.C. the reasons that follow, §§ 401-433, 1381-1383f]. For the motion for summary judgment filed by the Commissioner will be denied and the motion for summary judgment filed by McDonnell will be granted to the extent which it seeks a vacation of the Commissioner's decision. The case Dockets.Justia.com will be remanded to the Commissioner for further administrative proceedings consistent with this memorandum opinion. II. Procedural History McDonnell protectively filed for DIB and SSI benefits on June 9, 2006, and June 13, 2006, respectively. 103-05. Id. R. at 98-102, McDonnell alleged disability beginning June 1, 2005. The applications were administratively denied on October 19, 2006. R. at 53-61. McDonnell responded by filing an untimely request for a hearing before an administrative law judge ("ALJ"), but the late filing was excused for good cause. R. at 67. A hearing was held on April 9, 2008, in Morgantown, West Virginia before ALJ George A. Mills, III. R. at 31-48. McDonnell was not present at the hearing. His paralegal Id. representative, Barbara Manna, communicated McDonnell's request that the ALJ issue a decision on the record without his appearance or testimony because he was unable to travel to the hearing from his new residence in Ohio and did not wish for the case to be transferred. vocational expert R. at 34. ("VE"), testified. James Genough, an impartial R. at 43-47. In a decision dated April 28, 2008, the ALJ determined that McDonnell was not "disabled" within the meaning of the Act. at 21-30. The Appeals Council denied McDonnell's request for review on January 11, 2010, thereby making the ALJ's decision 2 R. the final decision of the Commissioner in this case. R. at 5-7. McDonnell commenced this action on February 17, 2010, seeking judicial review of the Commissioner's decision. Doc. No.1. McDonnell and the Commissioner filed motions for summary judgment on June 24, 2010, and July 26, 2010, respectively. Doc. Nos. 7 & 9. These motions are the subject of this memorandum opinion. III. Standard of Review This Court's review is limited to determining whether the Commissioner's decision is "supported by substantial evidence." 42 U.S.C. 1994). § 405(g) i Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. The Court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Medical Center v. Heckler, Cir. 1986). 806 F.2d 1185, 1190-1191(3d Congress has clearly expressed its intention that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 565 (1988) Pierce v. Underwood, 487 U.S. 552, (internal quotation marks omitted). As long as the Commissioner's decision is supported by substantial evidence, it 3 cannot be set aside even if this Court "would have decided the factual inquiry differently.1I 360 (3d r. 1999). "Overall Hartranft v. I I the substanti 181 F.3d 358 evidence standard ial standard of review. 1I Jones v. Barnhart is a de F.3d 501 1 503 1 l 364 (3d Cir. 2004). In order to establish a disability under the Act l a claimant must demonstrate a "medically determinable basis for an impairment that prevents him [or her] 'substant period. II from engaging in any gainful activityl for a statutory twelve month Stunkard v. Secretary of Health & Human Services F.2d 57 1 59 (3d Cir. 1988) i Kangas v. Bowen I 777 (3d Cir. 1987) i 42 U.S.C. 423 (d) (1) (A) §§ l 841 823 F.2d 775 1 I 1382c(a) (3) (A). A claimant is considered to be unable to engage in substantial gainful activity "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot and work experience I considering his agel education l I engage in any other kind of substantial gainful work which exists in the national economy.1I §§ 423 (d) (2) (A) I 1382c (a) (3) (B) . To support his or her ultimate findings law judge must do more than simply state He or must make specific findings of Health, Educ. 42 U.S.C. I an administrative conclusions. Stewart v. Sec'y & Welfare l 714 F.2d 287 1 290 (3d Cir. 1983). 4 The administrative law judge must consider all medical evidence contained in the record and provide adequate explanations for disregarding or rejecting evidence. Heckler, 734 F.2d 955, F.2d 700, 705 961 Weir on Behalf of Weir v. (3d Cir. 1984); Cotter v. Harris, 642 (3d Cir. 1981). The Social Security Administration ("SSA"), acting pursuant to its legislatively delegated rule making authority, has promulgated a five-step sequential evaluation process for the purpose of determining whether a claimant is "disabled" within the meaning of the Act. The United States Supreme Court summarized this process as follows: If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find nondisability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work 5 experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c) Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (footnotes omitted) In an action in which review of an administrative determination is sought, the agency's decision cannot be affirmed on a ground other than that actually relied upon by the agency in making its decision. In Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194(1947), the Supreme Court explained: When the case was first here, we emphasized a simple but fundamental rule of administrative law. That rule is to the effect that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency. Chenery Corp., 332 U.S. at 196. The United States Court of Appeals for the Third Circuit has recognized the applicability of this rule in the Social Security disability context. Fargnoli v. Massanari, 34, 44, n. 7 (3d Cir. 2001). Thus, the Court's review is limited to the four corners of the ALJ's decision. 6 247 F.3d IV. Discussion In his decision, the ALJ determined that McDonnell had not engaged substanti alleged onset date. gainful act R. at 23. ty subsequent to his McDonnell was found to be suffering from borderline intellectual functioning, bipolar disorder, and attention deficit hyperactivity disorder. 24. §§ R. at These impairments were found to be severe within 20 C.F.R. 404.1520(c) and 416.920(c), but the ALJ determined that they did not meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the" sting of Impairments" or with respect to a single impairment, a "Listed Impairment" or "Listing"). R. at 24-25. In accordance with 20 C.F.R. §§ 404.1545 and 416.945, the ALJ assessed McDonnell's residual functional capacity as follows: ter careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a I range of work at all exertional levels but with the following nonexertional limitations: work must be unskilled; no more than occasional contact with supervisors and coworkers, and no contact with the general public; work must be low stress with no production quota expectations. R. at 25. McDonnell was born on August 7, 1986, and was 18 years of age as of the alleged disability onset date. R. at 28. He was classified as a "younger individual" under the Commissioner's 7 regulations. 20 C.F.R. §§ 404.1563 and 416.963. He had at least a high school education and the ability to communicate in English. work. Id. R. at 28. McDonnell did not have any past relevant The ALJ concluded that McDonnell could perform the representative occupations of truck loader, kitchen helperdishwasher, and laundry worker. R. at 29. The VE's testimony established that these jobs existed in the national economy for the purposes of 42 U.S.C. §§ 423 (d) (2) (A) and 1382c(a) (3) (B). R. at 46. McDonnell argues that the ALJ failed to address whether he met the criteria of listing 12.05(C). Doc. No.8. The Commissioner counters that the ALJ's decision is supported by substantial evidence and that McDonnell did not meet his burden to provide evidence that he met 12.05(C). Doc. No. 10. It is the ALJ's burden to identify the listed impairments found in 20 C.F.R. Part 404, Subpt. P, Appx. 1, which are relevant to the claimant's impairments. Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 11920 n. 2 (3d Cir. 2000). The claimant bears the burden of showing that his impairment meets or equals a listed impairment. 20 C.F.R. § 404.1520(a) (4) (iii), Burnett, 220 F.3d at 120 n.2 (citing Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992)). In determining whether a claimant has met this burden, the Commissioner must specify 8 those listings that potentially apply to the claimant's impairments and give reasons why said listings are or are not met or equaled. Burnett, 220 F.3d at 119-20 n. 2; Comm'r of Soc. Sec., 137 Fed. Appx. 468, 471 torchia v. (3d Cir. 2005) (The Commissioner must evaluate "the available medical evidence in the record and then [set] forth that evaluation in an opinion ."). According to the five-step sequential evaluation, if a claimant meets a listing's criteria, the evaluation ends at step three because the claimant is considered to be per se disabled and benefits are awarded. 927 (3d Cir. 1992). Santise v. Schweiker, 676 F.2d 925, The United States Supreme Court has held that a claimant must prove that his condition meets every criterion in a listing before he can be considered disabled per se. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Under 12.05(C), a claimant is disabled if 1) he has an IQ between 60 and 70); 2) has an additional impairment that is severe; and 3) such conditions have been in existence prior to the claimant reaching the age 22. Williams, 1184; 20 C.F.R., Pt. 404, Subpt. P, App. I, § 970 F.2d at 12.05(C). Here, McDonnell submitted evidence that was probative of the first prong listing 12.05(C). R. at 168. Namely, the record includes a psychological report prepared by Pauline Weston, a certified school psychologist with Fayette, Greene, 9 and Washington Counties, dated March 1, 1995. R. at 167-172. McDonnell, who was eight-and-a half years old at the time, was to Ms. Weston because of his multidisciplinary problems "very slow academic progress." R. at 167. During her examination, Ms. Weston administered the Wechs Intelligence e for Children-Third Edition, Wechsler Individual Achievement Test, Stanford Binet Intelligence S Edition, and the Bender Visual Motor Gestalt Test. e Fourth Id. In terms of cognitive functioning, McDonnell was assessed to have a verbal scale IQ of 65, a performance scale IQ of 68, and a full e IQ of 64. R. at 168. "present ability falls R. at 172. Ms. Weston noted that McDonnell's the intellectually deficient range." Further, McDonnell's "present evaluation results and academic history suggest that he could be considered to be within Pennsylvania State Board of Education Rules and Regulations for exceptional student status under the definition mentally retarded." Ms. Weston's IQ test is probative of McDonnell meeting the first criterion of listing 12.05(C) because it demonstrated an IQ score between 60 and 70. was also evidence of been met. Williams, 970 F.2d at 1184. that the other c There terion may have Specifically, as per the ALJ's decision at step two, McDonnell had other severe impairments of bipolar disorder and 10 attention deficit hyperactivity disorder. R. at 24, See Markle v. Barnhart, 324 F.3d 182, 188 (3d Cir. 2003). Additionally, because McDonnell's IQ was documented between 60 and 70 when of 12.05(C) 's was 8 years old, there was relevant evidence rd terion that a claimant have had the mental impairment before he reached the age of 22. Pt. 404, Subpt. P, App. 1, § 20 C.F.R. 12.05(C). Furthermore, Edward Zuckerman, Ph.D.'s Psychiatric Review Technique indicated that listing 12.05(C) was among the listings relevant to McDonnell's impairments. Zuckerman compl R. at 221-27. Dr. a medical summary as part of his psychiatric review technique and indicated that 12.02 Organic Mental Disorders, 12.04 Affective Disorders, and 12.05 Mental Retardation were the categories upon which his medical disposition was based. R. at 215. Dr. Zuckerman noted McDonnell's borderline intellectual functioning was a medi ly determinable impairment that "is present [but] that does not precisely satisfy the diagnostic criteria" of 12.05(C). 219. R. at Despite Dr. Zuckerman's opinion that McDonnell did not meet listing 12.05, its inclusion in his psychiatric review technique is indicative of its relevance in McDonnell's disability determination. 11 Despite relevant evidence of McDonnell's alleged mental retardation and Dr. Zuckerman's psychiatric review technique including 12.05 as a relevant listing, the ALJ did not analyze whether McDonnell met listing 12.05(C). The ALJ determined that McDonnell's mental impairments, considered singly and in combination "do not meet or medically equal the listings of 12.02 and 12.04" and discussed the applicable medi in supporting his conclusion. R. at 24. evidence However, the ALJ did not determine whether McDonnell met listing 12.05(C) nor was there any discussion of evidence demonstrating that McDonnell's IQ may be in the range of 60-70, which is probat 12.05(C) 's first prong. of Indeed, the ALJ did not address McDonnell's 1995 IQ score of 64 anywhere in his decision. R. at 21 30. An ALJ has the duty to evaluate all relevant evidence in the record. Fargnoli, 247 F.3d at 41; Burnett, 220 F.3d at 121; Cotter, 642 F.2d at 704. An ALJ may not make speculative inferences from medical evidence and cannot reject evidence for no reason or the wrong reason. Smith v. Cali no, 637 F.2d 968,972 (3d . 1981), Diaz v. Comm'r of Soc. Sec. 500, 505 (3d. r. 2009). Therefore t t 577 F.3d the ALJ must explain the evidence supporting his findings and the reasons discounting the evidence he rejects, so that the reviewing court can 12 determine if significant probative evidence was improperly ected or simply ignored. Burnett, 220 F.3d at 121i Cotter, 642 F.2d at 705-07. While the ALJ may properly accept some parts of the medical evidence, and reject other parts, he must consider all the evidence and give some cogent reason for discounting the dence he rejects, particularly when he rejects evidence that suggests a contrary disposition. Brewster v. Heckler, 714 F.2d at 290). Adorno, 40 F.3d at 48 786 F.2d 581, 585 (3d Cir. 1986) i (citing Stewart, In Burnett! the United States Supreme Court for the Third Circuit held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements that a condition does not constitute the medical equivalent of a listed impairment are insufficient. The ALJ must provide a "discussion of the evidence" and an "explanation of reasoning" for his conclusion judicial ew 1 • ficient to enable meaningful Burnett, 220 F.3d at 120j See Jones, 364 F.3d at 505 & n.3. If an ALJ fails to mention probative evidence, then a reviewing court will not be able to determine whether the ALJ's The ALJ! of course! need not employ particular "magic" words: "Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis. II Jones! 364 F.3d at 505. 1 13 decision is supported by substantial evidence under Cot 405(g) § 642 F.2d at 705-07. Here, the ALJ failed to discuss McDonnell's IQ test result of 64 which was probative evidence that he met listing 12.05(C)'s first prong. at 1184. McDonnell's record 970 F.2d Williams, so included relevant evidence of listing 12.05(C) 's two other a. Id. There , because the ALJ did not discuss or even mention any evidence probative of listing 12.05(C), this Court is unable to review whether the ALJ's subsequent decision is supported by substantial evidence 2 • Cotter, 642 F.2d at 705 07. Moreover, a district court only reviews the ALJ's decision to determine if it is supported by substantial evidence. reviewing the record for substantial evidence, the In strict court does not weigh the evidence or substitute its own conclusions for those of at 552. fact finder. Rutherford, 399 F.3d The district court considers and reviews only those lMcDonnel1 also argues that the ALJ did not provide resulting functional limitations in his RFC analysis. Doc. No.8, 9. However, McDonnell has not noted medical evidence demonstrating functional limitations which were not included his RFC. R. at 9 10. On remand, McDonnell may supplement the medical record. Stover v. Shalala, 1995 WL 327981 * 8 (E.D.Pa. May 31, 1995). In his subsequent decision, the ALJ must include all I tations which are medically established and supported by the record in his RFC analysis. Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987), Rutherford v. Barnhart, 399 F.3d 546 548 (3d Cir. 2005). 14 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. i, 247 F.3d at 44 n. 7 3 • See Fa Therefore, because the ALJ did not mention McDonnell's IQ score within the mental retardation range, there are no grounds for this Court to speculate that ALJ did not discuss the IQ score because it was not "current" under the applicable legal standards. The ALJ was to discuss the weight he decided to give to any of McDonnell's IQ scores, but his decision not to address an IQ score within the mental retardation range cannot be firmed. The only remaining question is whether a judici ly ordered award of benefits is proper, or whether the case should be remanded to the Commissioner proceedings. further administrat An immediate award of benefits is appropriate only ("The District Court, apparently recognizing ALJ's failure to consider all of the evant 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 Corp., 318 U.S. at 63, that \ [t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.' " at 87; parallel and other citations omitted) 3 15 when the evidentiary record has been fully developed, and when the evidence as a whole clearly points in favor of a finding that the claimant is statutorily disabled. 225 F.3d 310, 320 (3d Cir. 2000). Morales v. Apfel, That standard is not met here. There is evidence probative of 12.05(C) 's criteria. Specifically, McDonnell's 1995 IQ test indicated that he had an IQ of 64, within listing 12.05(C) 's definition of mental retardation. Williams, 970 F.2d at 1184. Furthermore, Pushkulli Pillai, M.D., completed a Mental Residual Functional Capacity Questionnaire in July 2007 and referenced McDonnell's 1995 IQ test to support her conclusion that he had a low IQ or reduced intellectual functioning. R. at 288. However, subsequent IQ tests taken after McDonnell reached adulthood contradict his prior IQ test result and indicated that he was not mentally retarded. In 2004, Thomas Andrews, Ph.D., a psychologist, diagnosed borderline intellectual functioning based on a performance IQ score of 76. R. at 176. In May 2006, Amy Sedlock, a licensed psychologist posited that McDonnell appeared to be "currently functioning above the range of mental retardation." R. at 196. Further, in September 2006, Dennis Kreinbrook, Ph.D., performed a consultative psychological evaluation and opined that McDonnell "appear [edJ to have 16 border I intellectual ability." R. at 296. Therefore, the evidentiary record as a whole does not clearly point in favor of a finding that McDonnell is statutorily disabled under 12.05(C). V. Conclusion ALJ's decision is not supported by substantial evidence within the meaning of § 405(g) because he failed address probat medical evidence or determine whether McDonnell met listing 12.05(C). AND NOW, this Cotter, 642 F.2d at 705 07. of October, 2010, IT IS HEREBY ORDERED that the motion for summary judgment filed by the Defendant (Doc No.9) is DENIED and the motion for summary judgment filed by the Plaintiff (Doc No.7) is GRANTED. accordance with the fourth sentence In 42 U.S.C. §405(g), the administrative decision of the Commissioner of Social Security is hereby VACATED and the case will be remanded to the Commissioner for further administrative proceedings consistent with this memorandum opinion. Gary L. Lancaster, Chief United States District Judge 17

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.