SEIFERT v. COMMISSIONER OF SOCIAL SECURITY, No. 3:2010cv00188 - Document 17 (W.D. Pa. 2011)
Court Description: MEMORANDUM JUDGMENT ORDER granting 9 Plaintiff's Motion for Summary Judgment and denying 13 Defendant's Motion for Summary Judgment. The Commissioner's decision dated 11/6/07 is reversed and case remanded to Commissioner for further proceedings consistent with this opinion. Signed by Judge Gustave Diamond on 9/27/11. (gpr)
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SEIFERT v. COMMISSIONER OF SOCIAL SECURITY Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR, THE WESTERN DISTRICT OF PENNSYLVANIA DAVID WAYNE SEIFERT t Plaintiff t v. Civil Action No. 10-188J MICHAEL J. ASTRUE t COMMISSIONER OF SOCIAL SECURITY t Defendant. MEMORANDUM JUDGMENT ORDER AND NOW t ;;Z~y this of September t upon due consideration of the parties t cross-motions for summary judgment pursuant to plaintiffts request for review of the decision of the Commissioner of Security Social ("Commissioner tt ) denying plaintiffts application for supplemental security income under Title XVI of the Social Security Act ("Act tt ) t IT IS ORDERED that plaintiffts motion for summary judgment (Document No.9) be, and the same hereby is, summary judgment denied. granted and the Commissioner's motion for (Document No. 13) bet and the same hereby iS t The Commissioner's decision of November 6, 2007 t will be reversed and this case will be remanded to the Commissioner for further proceedings consistent with this opinion pursuant to sentence 4 of 42 U.S.C. §405(g). When the Commissioner determines that a claimant is not "disabled" within the meaning of the Act, the findings leading to ~A072 (Rev, 8/82) such a conclusion must be based upon substantial evidence. Dockets.Justia.com "Substantial scintilla. evidence has been defined as 'more than a mere It means such relevant evidence as a reasonable mind might accept as adequate. (3d Cir. 1999) Plummer v. Apfel, 186 F.3d 422, 427 '11 (citation omitted) . Despite the deference to administrative decisions required by this standard, reviewing courts \\ \ retain a responsibility to scrutinize the entire record and to reverse or remand if the [Commissioner's] evidence.'ff decision is not supported by substantial Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)). evaluating substantial "'leniency findings, whether [should] evidence be shown supports in an In ALJ's establishing the claimant's disability, and ... the [Commissioner's] responsibility to rebut it [should] be strictly construed Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) , /I Reefer v. (quoting Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979)). Plaintiff protectively filed his pending application for supplemental security income on December 6, 2005, alleging a disability onset date of June 13, 2001 (later amended to May lOt 2005) due to various physical and mental impairments. application was denied initially. held a hearing on September 14, At plaintiff's request an ALJ 2006, at represented by counsel, appeared and testified. 2007, Plaintiff's which plaintiff, On November 6, the ALJ issued a decision finding that plaintiff is not disabled. On June 25, 2009, the Appeals Council denied review making the ALJ's decision the final decision of the Commissioner . ....A072 (Rev. 8/82) - 2 Plaintiff was 48 years old at the time of the ALJ's decision and is classified as a younger person under the regulations. C.F.R. §416.963(d). education and Plaintiff has past has relevant administrative specialist in the Army, van driver, at least work a high experience 20 school as an a security officer and a but he has not engaged in any substantial gainful activity since his application date. After testimony reviewing from plaintiff concluded that plaint Act. plaintiff's and a medical records vocational and expert, hearing the ALJ f is not disabled within the meaning of the The ALJ found that although the medical evidence establishes that plaintiff suffers from the severe impairments of history of complex partial seizures, sleep apnea, degenerative disc disease, diabetes, borderline personality disorder, bipolar disorder and post-traumatic stress disorder,l those impairments, combination, do not meet or equal alone or in 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 perform a significant range of light work but with certain restrictions recognizing the limiting effects of his impairments. 2 (R. 15). Taking into account these limiting 1 At issue on this appeal is the ALJ's analysis of plaintiff's mental impairments and their impact on plaintiff's ability to perform work. 2 Specifically, the ALJ found plaintiff has the residual functional capacity "to perform light work which requires no more 'I.l!.A072 (Rev. 8/82) - 3 effects, a vocational expert identified numerous categories of jobs which plaintiff can perform based upon his age, education, work experience and residual functional capacity, including routing clerk-mail sorter, cleaner-housekeeper, and flower picker at the light exertional level, and final assembler, charge account clerk and product inspector at the sedentary exertional level. Relying on the vocational expert's testimony, the ALJ found that, although plaintiff cannot perform his past relevant work, he is capable of making an adjustment to numerous significant numbers in the national economy. jobs existing in Accordingly, the ALJ concluded that plaintiff is not disabled under the Act. The Act defines "disability" as the inability to engage in substantial gainful activity by reason of a physical or mental impairment which can be expected to last for a continuous period of at least twelve months. 42 U.S.C. 42 U.S.C. §1382c(a} (3) (A). The impairment or impairments must be so severe that the claimant "is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy .... " 42 U.S.C. 42 U.S.C. §1382c(a) (3) (B). than simple, routine, repetitive tasks, not performed in a fast paced production environment, involving only simple, work-related decisions, and in general, relatively few work place changes and which requires no more than occasional interaction with supervisors, coworkers and members of the general public." (R. 15) . ~A072 (Rev. 8/82) - 4 - The Commissioner has promulgated regulations incorporating a five-step sequential evaluation process] for determining whether a claimant is under a disability. 20 C. F . R . § § 404 . 1520 and 416.920; Newell v. Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003). 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 (1) raises several challenges to the ALJ's the ALJ improperly evaluated the medical evidence from plaintiff's treating psychiatrist; (2) the ALJ improperly evaluated plaintiff's credibility; and, (3) the ALJ's residual functional capacity finding and hypothetical to the vocational expert failed to account for all of plaintiff's limitations. Because the ALJ relevant evidence inadequately evidence from failed to consider from plaintiff's explained that same her significant amount treating psychiatrist, rationale treating a for source, discounting this case of and other must be remanded to the Commissioner for further proceedings. 3 The ALJ must determine in sequence: (1) whether the claimant currently is engaged in substantial gainful activity; (2) if not, whether he has a severe impairment; (3) if so, whether his 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 him from performing his past-relevant work; and, (5) if so, whether the claimant can perform any other work which exists in the national economy, in light of his age, education, work experience, and residual functional capacity. 20 C.F.R. §416.920. 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. §416.920a. 'b.AO 72 (Rev. 8/82) - 5 The standards for evaluating medical evidence from a treating source are well-established. See 20 C.F.R. § 416.927; SSR 96-2p. Under the Social Security Regulations and the law of this Circuit, opinions of treating physicians are entitled to substantial, and at times even controlling, weight. 20 C.F.R. Fargnoli v. Massanari, 247 F.3d 34, 43 § 416.927(d) (2); (3d Cir. 2001). Where a treating physician's opinion on the nature and severity of an impairment is well supported by medically accepted clinical and laboratory diagnostic techniques and is not other substantial evidence controlling weight. Id. in the record, inconsistent with it will be given When a treating source's opinion is not entitled to controlling weight, it is to be evaluated and weighed under the same standards applied to all other medical opinions, taking into account supportability, numerous factors the specialization. consistency and including 20 opinion's C.F.R. § 416.927 (d) . In this case, Cecilia Levich. Centers plaintiff's treating psychiatrist was Dr. Records from the Veterans Administration Medical in Altoona and Pittsburgh show that plaintiff had 28 appointments with Dr. Levich between February 7, 2005, and March 13,2007. (R. 265-416; 564-860). Dr. Levich completed mental health progress notes for each of these visits, all of which are contained within exhibits 3F and 18F of the administrative record that was before the ALJ. assessment of plaintiff's activities on May 22, 2007. In addition, Dr. Levich completed an ability do (R. 861-863). 'A072 (Rev 8182) to - 6 work-related mental Inexplicably, with the exception of Dr. Levich' s May 22, 2007, assessment, which the ALJ afforded "minimal weight" after summarily discounting it in a single sentence because it "is not consistent with the evidence as a whole and is not supported by objective findings," (R. 20), the ALJ neglected to mention any of the other medical evidence from Dr. Levich. In fact, even in discussing Dr. Levich's assessment, the ALJ failed to identify Dr. Levich as a treating source. It is axiomatic in social security cases that, although the ALJ may weigh the credibility of the evidence, she must give some indication of the evidence that she rejects and the reasons for discounting that evidence. Fargnoli, 247 F.3d at 43. Where the ALJ fails to consider and explain the reasons for discounting all of the relevant evidence before her, she has not met her responsibilities under the Act and the case must be remanded with instructions "to review all of the pertinent medical evidence, explaining any conciliations and rejections." Burnett v. Apfel, 220 F.3d 112, 122 (3d Cir. 2000). Here, the ALJ failed to consider any of the treatment notes from Dr. Levich which clearly are pertinent medical evidence. First, the plaintiff's ignored mental treating source health who progress had an notes ongoing are from treatment relationship with plaintiff on a regular basis for over two years. 20 C.F.R. 416.902. Under the regulations, more weight generally is given to opinions from treating sources "since these sources are likely to be the medical professionals most able to provide a ~A072 (Rev,8182) 7 detailed, longitudinal picture of [a claimant's] impairments." 20 C.F.R. 416.927(d) (2). Moreover, the ignored mental health progress notes all set forth Dr. Levich's assigned GAF rating for plaintiff at the time of each appointment. The GAF score considers psychological, social and occupational functioning on a hypothetical continuum of mental health. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (2000). GAF scores are used by "mental health clinicians and doctors to rate the social, adults." occupational and psychological functioning of Irizarry v. Barnhart, 233 Fed. Appx. 189, 190, n. 1 (3d Cir.2007). Here, Dr. Levich consistently assigned plaintiff GAF ratings between a high of 46 and a period she treated plaintiff. low of 40 throughout the two-year A GAF rating of 41-50 is meant to indicate "serious" symptoms or "serious" impairment in social and occupational functioning. DSM-IV-TR at 34. A GAF rating of 40, which Dr. Levich assigned at plaintiff's first two appointments in February of 2005, falls within the range meant to indicate "major" impairment relations, in several areas, such as work judgment, thinking or mood. or school, family Id. While the Commissioner correctly points out that the use of the GAF scale is not endorsed by the Social Security Administration because its scores do not have a direct correlation to the disability requirements and standards of the Act, See 65 Fed.Reg. 50746, 50764-65 (2000), ~A072 (Rev. 8/82) 8 GAF scores nevertheless are considered to be medical evidence that may inform judgment as to whether a claimant is disabled. the ALJ's See Irizarry, 223 Fed. Appx. at 192; Rios v. Commissioner of Social Security, 2011 * 2 (3d Cir., Sept. 14, 2011) WL 4059780 at 424 F.Supp.2d 805, 814 (E.D. Pa. 2006). i Colon v. Barnhart; As such, they are to be considered under the standards set forth in the regulations for evaluating medical opinion evidence factors including consistency. Here taking into account numerous their alia l supportability and 20 C.F.R. §416.927(d). the l inter l l record contains 28 separate reports from plaintiff/s treating psychiatrist each assigning plaintiff GAF scores which consistently indicated serious 1 and on two occasions maj or 1 impairment in social or occupational functioning. Yet, the ALJ failed to acknowledge or consider these treatment notes in her decision. Because the ALJ did not discuss all of the relevant medical evidence 1 evidence 1 this and proceedings. her decision is not supported by substantial case her 1 l for rejecting or discounting assessment in light of the neglected treatment notes. Levich may have upon 1 l and any And if anYI the neglected reports from the ALJ 1 s functional capacity findings. 'A072 (Rev. 8/82) additional She must re-evaluate Dr. Levich/s May 221 she must discuss what impact Dr. for in particular that from Dr. Levich reasons particular evidence. 2007 remanded the ALJ must specifically address all of the relevant medical evidence explain be See IrizarrYI 223 Fed. Appx. at 192-93. On remand 1 must must - 9 credibility and residual The ALJ, of course, does not have to accept any findings from any particular medical source, even a treating source, so long as she adheres to the standards set forth in the regulations for evaluating medical evidence, 20 C.F.R. §416.927(d) (2), and gives some indication of the evidence she rejects and her reasons for rejecting it. For the foregoing reasons, plaintiff's motion for summary judgment will be granted, the Commissioner's motion for summary judgment will be denied, and this case will be remanded to the Commissioner for further proceedings consistent with this opinion. ~~ / Gustave Diamond United States District Judge cc: Lindsay Fulton Osterhout 521 Cedar Way Suite 200 Oakmont, PA 15139 Stephanie L. Haines Assistant U.S. Attorney 224 Penn Traffic Building 319 Washington Street Johnstown, PA 15901 'A072 (Rev. 8/82) - 10
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