RUSSELL v. ASTRUE, No. 2:2010cv00761 - Document 12 (W.D. Pa. 2011)
Court Description: MEMORANDUM JUDGMENT ORDER granting 7 Plaintiff's Motion for Summary Judgment and denying 10 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security dated 9/10/08 is reversed and this case is remanded to the Commissioner for further proceedings consistent with this opinion. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/26/11. (gpr)
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RUSSELL v. ASTRUE Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JOLETTE C. RUSSELL, Plaintiff, v. Civil Action No. 10-761 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant. MEMORANDUM JUDGMENT ORDER AND NOW, this of September, 2011, upon due consideration of the parties' cross-motions for summary judgment pursuant to plaintiff's request for review of the decision of the Commissioner of Social ("Commissioner" ) Security denying plaintiff's application for supplemental security income under Title XVI of the Social Security Act ("Act"), IT IS ORDERED that plaintiff's motion for summary judgment (Document No.7) be, and the same hereby is, summary judgment denied. granted and the Commissioner's motion for (Document No. 10) be, and the same hereby is, The Commissioner's decision of September 10, 2008, 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 IIdisabled" 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 I" (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. decision is not supported by substantial Morales v. Apfel, 225 F.3d 310[ 317 (3d Cir. 2000) [II (quoting Smith v. Califano, 637 F.2d 968[ 970 (3d Cir. 1981)). evaluating findings, whether substantial "'leniency [shoulq] 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) ," Reefer v. (quoting Dobrowolsky v. Califano, 606 F.2d 403[ 407 (3d Cir. 1979)). Plaintiff protectively filed her pending application for supplemental security income on August 9[ 2006[ with a disability onset date of June 30, 2005, hepatitis C and hypertension. initially. 19, 2008, due to depression[ hepatitis B, Plaintiff's application was denied At plaintiff's request an ALJ held a hearing on May at which plaintiff voluntarily waived her right representation and appeared and testified pro se. to On September 10, 2008, the ALJ issued a decision finding that plaintiff is not disabled. On April 16, 2010, the Appeals Council denied review making the ALJ's decision the final decision of the Commissioner. ~A072 (Rev. 8182) - 2 Plaintiff was 51 years old at the time of the ALJ's decision and is classified as a person closely approaching advanced age under the regulations. school 20 C.F.R. §416.963(d).1 education and has past phlebotomist and a housekeeper, relevant work She has a high experience as a but she has not engaged in any substantial gainful activity since her alleged onset date. After reviewing plaintiff's testimony, plaintiff's medical records and hearing the ALJ concluded that plaintiff is not disabled wi thin the meaning of the Act. The ALJ found that although the medical evidence establishes that plaintiff suffers from the severe impairments of depression, obesity, hepatitis B, hepatitis C and hypertension, combination, those impairments, alone or in do not meet or equal the criteria of any of the impairments listed at Appendix 1 to 20 C.F.R., Part 404, Subpart P. The ALJ also found that although plaintiff is unable to perform any of her past relevant work she nevertheless retains the "residual functional capacity to perform the full range of light work as defined in 20 C.F.R. 416.967(b)." Based on plaintiff's residual functional capacity, age, education and work experience, the ALJ applied Medical-Vocational Rules 202.20 and 202.13 of Appendix 2 of 20 C.F.R., Part 404, Subpart P, to direct a finding of not disabled. 1 Plaintiff was 48 years old on her alleged onset date and 49 years old on the date her application was filed making her a younger individual under the regulations at those times. 20 C.F.R. §416.963(c). Cl!!>.A072 (Rev 8f82) 3 - 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. §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. §1382c(a) (3) (B). The Commissioner has promulgated regulations incorporating a five-step sequential evaluation process 2 for determining whether a claimant is under a disability. 20 C.F.R. §416.920j 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, plaintiff raises but a single challenge to the ALJ's finding of not disabled, specifically, that the ALJ's residual The ALJ must determine in sequence: (1) whether the claimant currently is 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 I 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. §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. 2 ~A072 (Rev. 8/82) - 4 functional capacity finding failed to take into account any limitations arising from her severe impairment of depression. Upon review, the court does not believe that the ALJ's residual functional capacity finding that plaintiff can perform the "full range of light work" adequately accounts for the ALJ's finding at step 3 that plaintiff maintaining concentration, Moreover, plaintiff's has persistence "moderate "moderate difficulty or pace." difficulty (R. 15). maintaining concentration, persistence or pace" constitutes a non-exertional limitation which precludes the use of the Grids to dictate a finding of not disabled and requires advisory testimony from a vocational expert, or similar evidence, to aid in the determination of whether other jobs exist which plaintiff can perform. Accordingly, this case must be remanded to the Commissioner for further proceedings. At step five of the sequential evaluation process, the burden shifts to the Commissioner to show that other jobs exist in significant numbers in the national economy that the claimant can perform consistent with her medical impairments, age, education, past work experience, and residual functional capacity. §416.920(f) i 20 C.F.R. Johnson v. Commissioner of Social security, 529 F.3d 198, 205 (3d. Cir. 2008). Residual functional capacity is defined as that which an individual still is able to do despite the limitations caused by her impairments. 20 C.F.R. §416.945{a) i Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001). In assessing a claimant's residual functional capacity, the ~A072 (Rev 8/82) 5 ALJ is required to consider the claimant's ability to meet certain demands of jobs, such as physical demands l mental demands l sensory requirements and other functions. 20 C.F.R. §416.945(a). In doing so, the ALJ must consider all relevant evidence, including medical records, examinations, observations descriptions of made during formal medical limitations by the claimant and others and observations of the claimant's limitations by others. Fargnoli, 247 F.3d at 41i see also SSR 96 8p. Here, the ALJ concluded that plaintiff retains the "residual functional capacity to perform the full range of light work as defined in 20 C. F. R. 416.967 (b) . The II referenced regulation defines "light work" as work which "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds" or a job that "requires a good deal of walking or standing, or ... involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. 416.967 (b) . Plaintiff argues that the ALJ's residual functional capacity finding is flawed because it fails to account for his step 2 finding that plaintiff's depression is a severe impairment. Commissioner counters accommodated any by asserting limitations that arising the from ALJ party addresses, plaintiff has however, "moderate is the difficulty persistence or pace." 'Aon (Rev. 8/82) - 6 ALJ's adequately plaintiff's mental impairment by limiting her to unskilled work. st maintaining 3 The severe What neither finding that concentration, A "moderate difficulty maintianing concentration, persistence or pace" very well may impact upon plaintiff's ability to "perform the full range of light work as defined in 20 C.F.R. 416.967(b)" as found by the ALJ in his residual functional capacity finding. 20 C.F.R. §416.967(b) defines "light work" purely in exertional terms related to a claimant's ability to meet the strength demands for sitting, pulling. standing, walking, lifting, carrying, pushing and See 20 C.F.R. §416.969(a). Non-exertional limitations, however, are those that affect a claimant's demands. ability 20 C.F.R. to meet job demands §416.969a(a). other than strength Examples of non-exertional limitations include, inter alia, difficulty functioning because of nervousness, anxiety or depression, difficulty in maintaining attention or concentration and difficulty in understanding or remembering detailed instructions. the ALJ expressly found at 20 C.F.R. §416.969a(b). step 3 that plaintiff has a Here, non exertional limitation, i.e., a "moderate difficulty maintaining concentration, functional persistence or pace." capacity finding fails Yet, the ALJ's residual to take this non-exertional limitation into account, necessitating a remand. Having found that the ALJ's residual functional capacity finding failed to account for a specific non-exertional limitation supported by the record, this court must also conclude that the ALJ clearly erred in applying the Medical-Vocational guidelines ("the Grids") to dictate a finding of not disabled at step 5 of the sequential evaluation process. 'It,A072 (Rev. 8/82) - 7 The Grids set out various combinations of age, work experience and residual functional capacity, education, and direct a finding of disabled or nor disabled for each combination. C.F.R. Part 404, Subpart P, Appendix 2. See 20 When the four factors in a claimant's case correspond exactly with the four factors set forth in the grids, the ALJ must reach the result the grids reach. Sykes v. Apfel, 228 F.3d 259, §416.969j 20 C.F.R., However, 263 (3d Cir. 2000) 20 i C.F.R. Part 404, Subpart P, Appendix 2, §200.00. Appendix 2 explicitly states that "the rules are predicated on an individual's having an impairment which manifests itself by limitations in meeting the strength requirements of jobs Appendix 2, §200.00(e). /I impairment strength rule (s) or combination limitations reflecting capabilities, and of impairments non-exertional resulting in both limitations the individual's maximum residual the age, Thus, "where an individual has an strength education and work experience framework for consideration of how much the provide a individual's work capability is further diminished in terms of any types of jobs which would be contraindicated by the non-exertional limitations. Appendix 2, §200.00(e) (2) Here, the ALJ found /I (emphasis added). that plaintiff retains the residual functional capacity to perform the strength demands of jobs at the However, light exertional level. that plaintiff has a the ALJ also found at step 3 "moderate concentration, persistence or pace. /I difficulty maintaining Because plaintiff has a non exertional limitation which possibly could further diminish her <\\l,A072 (Rev, 8/82) - 8 ability to perform the mental demands of jobs at the light exertional level, the Grids cannot be used on remand to direct a finding of disabled or not disabled. The Commissioner argues that the ALJ adequately accounted for any non-exertional limitations arising from plaintiff's depression simply by limiting her to unskilled work 3 and therefore properly used the Grids to direct a that the ALJ finding of not disabled because the Grids take "administrative notice ... of the numbers of unskilled jobs that exist economy at the various functional Astrue, 2009 WL 3241853 (W.D. throughout levels. Pa., the national See 11 Oct. ~ 5, 2009) (limiting Davis v. plaintiff to unskilled work "fits the precise requirements of the Grids"). The court respectfully disagrees. Ini tially, the Commissioner's argument fails to consider that the ALJ found at step 3 that plaintiff has a specific non exertional limitation which he did not account for in the residual functional capacity finding. explicitly provide individual's having that an As already noted, "the rules impairment are which the regulations predicated manifests on an itself by limitations in meeting the strength requirements of jobs they may not be fully applicable where the nature [and] of an individual's impairment does not result in such limitations, e.g., 3 "Unskilled work" is defined as "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time ... a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed." 20 C.F.R. §416.968(a). ~A072 (Rev 8182) - 9 certain mental, §200.00(e) sensory or skin impairments. Appendix II 2, (emphasis added). Here, the ALJ found i. e. , limitation, concentration, that plaintiff has \\moderate a persistence or pace, a non-exertional difficulty and If the maintaining Grids therefore cannot be used to direct a finding of not disabled but must be used as a framework in considering how plaintiff's ability to perform light work might be diminished by her non-exertional limitation. Secondly, the Court of Appeals for the Third Circuit has addressed on several occasions issues relating to the adequacy of a residual functional capacity finding where the record contained evidence that the claimant had \\moderate difficulty maintaining concentration, persistence or pace," and in these instances the appellate court approved a residual functional capacity finding accommodating that difficulty with a claimant to \\simple, routine tasks." 262 Fed. Appx. 410, 412-13 restriction limiting the See,~, (3d Cir. 2008) moderate limitations in concentration, Menkes v. Astrue, (ALJ accounted for persistence or pace in hypothetical by restricting claimant to "simple, routine tasks") McDonald v. 2008) (same). Astrue, 293 Fed. Appx. 941, 946-47 (3d. i Cir. The ALJ included no such restriction in his residual functional capacity finding in this case. Significantly, in neither of the above-cited cases were the Grids used to direct a finding of not disabled. Rather, the testimony of a vocational expert was sought to aid the ALJ in ~A072 (Rev. 8/82) - 10 determining whether jobs existed in the national economy that the claimants could limitation. perform with this sort of non-exertional See Menkes, 262 Fed. Appx. at 412 13 (ALJ expressly inquired of the vocational expert whether a limitation to simple routine tasks would have "any effect on the unskilled occupational base"); McDonald, restricting 293 claimant Fed. to Appx. "simple, at 946-47 routine (hypothetical tasks" adequately accounted for plaintiff's moderate difficulty in concentration, persistence and pace and vocational expert's response provided substantial evidence for the ALJ's conclusion). Moreover, that "simple even in several cases in which courts have held routine tasks" equates to "unskilled work, /I a limitation to "unskilled work" expressly was incorporated into the residual functional capacity finding and was presented in a hypothetical to the vocational expert before a determination was made that jobs existed in the national economy which the claimant could perform. Feb. 4, claimant See Douglas v. Astrue, 2011 WL 482501 (E.D. Pa., 2011) (ALJ's hypothetical to vocational expert limiting to unskilled work adequately accounted limitations in concentration, Barnhart, functional 2006 WL 1620178 capacity for for persistence or pace) (E.D. Pa., unskilled June light i 9,2006) work moderate Bovell v. (residual presented to vocational expert). Finally, the Third Circuit has held that "in the absence of a rulemaking establishing the fact of an undiminished occupational base, the Commissioner cannot determine that a claimant's non ~A072 (Rev 8182) - 11 exertional impairments do not significantly erode his occupational base under the medical-vocational guidelines without either taking additional vocational evidence establishing as much or providing notice to the claimant of his intention to take official notice of this fact (and providing the claimant with an opportunity to counter the conclusion)." neither here. Sykes, 228 F.3d at 261. 4 The ALJ did Instead, he simply stated that plaintiff's mental limitations "do not preclude a significant number of unskilled jobs" and he did so without the benefit of any vocational evidence or even by holding / and referring to plaintiff any had specific "no rule opportunity or to regulation counter so the conclusion. /15 4 The Commissioner subsequently issued an acquiescence ruling explaining that before denying disability benefits at step 5 when a claimant has non-exertional impairments the Commissioner must: (1) take or produce vocational evidence such as from a vocational expert, the DOT or other similar evidence (such as a learned treatise); or (2) provide notice that the Commissioner intends to take administrative notice of the fact that a particular non-exertional limitation does not significantly erode the occupational job base and allow the claimant the opportunity to respond. AR 01-1(3) i 2001 WL 65745. While AR 01-1(3) states it does not apply where the Commissioner relies on a social security ruling that includes a statement explaining how the particular non-exertional limitation under consideration affects a claimant's occupational job base, the ALJ did not rely on any such social security ruling here. 5 In this regard, the court also notes that plaintiff was unrepresented at the hearing before the ALJ. It has long been established that the ALJ has a heightened duty to develop the record and to hold full and fair hearings when a claimant is unrepresented. Livingston v. Califano, 614 F.2d 342 (3d Cir. 1980); Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979). Social Security proceedings are inquisitorial, not adversarial and, "it is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits./1 Sims v. Apfel, 530 U.S. 103 (2000). Accordingly, the ALJ should have been 'Aon (Rev. 8/82) - 12 On remand, the ALJ must reassess plaintiff's residual functional capacity finding to account for plaintiff's "moderate difficulty maintaining concentration, persistence or pace." He must also reconsider his finding of not disabled at step 5 and, in doing so, should seek the similar evidence, advice of a vocational expert, or to aid in the determination of whether jobs exist in the national economy which someone of plaintiff's age, education, work background and properly assessed, can perform. residual functional capacity, AR 01-1(3); Sykes, 228 F.3d 259 at 273. 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: Kelie C. Schneider, Esq. Robert Peirce & Associates, P.C. 2500 Gulf Tower 707 Grant Street Pittsburgh, PA 15219 Lee Karl Assistant U.S. Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219 even more hesitant to use the Grids to direct a finding of not disabled without the benefit of vocational evidence. II!t.Aon (Rev. 8/82) - 13
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