O' LEARY v. ASTRUE, No. 2:2012cv01350 - Document 11 (W.D. Pa. 2013)
Court Description: MEMORANDUM JUDGMENT ORDER granting 7 plaintiff's Motion for Summary Judgment and denying 9 defendant's Motion for Summary Judgment. The matter is remanded to the Commissioner of Social Security for further proceedings consistent with the court's Memorandum Judgment Order. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 8/5/13.(kw)
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O&#039; LEARY v. ASTRUE Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA CLAIRE L. O'LEARY, Plaintiff, v. Civil Action No. 12-1350 CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant. MEMORANDUM JUDGMENT ORDER ~~ay AND NOW, this the parties' of August, 2013, upon consideration of cross-motions for summary judgment pursuant to plaintiff's request for review of the decision of the Commissioner of Social Security ("Commissioner" ) denying in part her application for disability insurance benefits ("DIB") under Title II 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 granted, summary judgment denied. and the Commissioner's motion for (Document No.9) be, and the same hereby is, The case will be remanded to the Commissioner pursuant to sentence 4 of 42 U.S.C. §405(g) for further proceedings consistent with this Memorandum Judgment Order. When the Commissioner determines that a claimant is not "disabled" within the meaning of the Act, the findings leading to such a conclusion must "Substantial evidence be based upon substantial has been defined as 'more evidence. than a mere ~A072 (Rev. 8182) scintilla. It means such relevant evidence as a reasonable mind Dockets.Justia.com might accept as adequate. '" (3d Cir. 1999) Plummer v. Apfel, 186 F.3d 422, 427 (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), quoting, Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). evaluating findings, whether substantial '''leniency [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 Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003), quoting, Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. These well- 1979). established principles dictate that the court remand this case to the Commissioner for further proceedings as discussed herein. Plaintiff filed her application for DIB on February 13, 2009, alleging disability beginning on December 5, 2007, due to right leg problems, depression and chronic obstructive pulmonary disease ( \\ COPD") . request, At plaintiff's Plaintiff's application was denied. an ALJ held a hearing on February 3, 2011, at which plaintiff, who was represented by counsel, appeared and testified. On March 31, 2011, the ALJ issued a partially favorable decision finding that plaintiff was not sabled prior to March 3, 2010, but became disabled on that date when her age category changed and that she was entitled to benefits as of that time. ~A072 (Rev. 8/82) - 2 On September 6, 2012, the Appeals Council denied plaintiff's request for review of the partially favorable decision, making the ALJ's decision the final decision of the Commissioner. Plaintiff, who is a high school graduate, was 53 years old when she applied for benefits, which is classified as an individual closely approaching advanced age under the regulations. 20 C.F.R. §404.1563(d). 2010, the date she Plaintiff turned 55 years old on March 3, became eligible for benefits, which is considered a person of advanced age pursuant to §404.1563(e). Plaintiff has past relevant work experience as an administrative assistant, but she has not engaged in substantial gainful activity at any time since her alleged onset date of disability. After testimony reviewing from plaintiff's plaintiff and a medical records vocational and expert, hearing the ALJ concluded that plaintiff was not disabled within the meaning of the Act prior to March 3, 2010, but she became disabled on that date pursuant to Medical-Vocational Rule 202.06 when she turned age 55. At all times relevant to the decision, the ALJ found that plaintiff's severe impairments included traumatic arthritis of the right knee, COPD, hypothyroidism, obesity and mood disorder, but those impairments, alone or in combination, did not meet or equal the criteria of any of the impairments listed in Appendix 1 of 20 C.F.R., Part 404, Subpart P. The ALJ found that plaintiff retained the residual functional capacity to perform light work 'Ilt.Aon (Rev 8/82) - 3 with a number of additional limitations. Plaintiff requires a sit/stand option, she is limited to no more than occasional balancing, stooping, kneeling, crouching and crawling, and she is precluded from climbing ropes, ladders or scaffolds. to dust, She must avoid more than moderate exposure fumes, odors, gases, poor ventilation and temperature, humidity and wetness extremes. In addition, plaintiff is limited to performing low-stress jobs in a stable environment. She also is limited to simple, routine and repetitive tasks that involve short, simple instructions decisionmaking. contact with and require little independent Finally, plaintiff is restricted to occasional the general public, co workers and supervisors (collectively, the "RFC Finding-) . As a result of these limitations, the ALJ determined that However, plaintiff could not perform her past relevant work. based upon the vocational expert's testimony, the ALJ concluded that age, prior background, to work March 3, 2010, experience and plaintiff's residual educational functional capacity enabled her to perform other work that exists in the national economy, such as an order caller, marker and ticket seller. As a result, the ALJ found that plaintiff was not disabled within the meaning of the Act from her alleged disability onset date of December 5, 2007, through March 3, 2010. When plaintiff turned 55 years old on March 3, 2010, the ALJ found that she was disabled as of that date by application of Medical-Vocational Rule 202.06. The Act defines "disability" as the inability to engage in substantial gainful activity by reason of a physical or mental ~A072 (Rev. 8/82) - 4 impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. §423(d) (1) (A). The impairment or impairments must be so severe that the claimant uis not only unable to do [her] previous work but cannot, considering [her] age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy 42 U.S.C. §423 (d) (2) (A). II The Commissioner has promulgated regulations that incorporate a five-step sequential evaluation process for determining whether a claimant is disabled. The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether she has a severe impairment; (3) if so, whether her impairment meets or equals the criteria listed in Appendix 1; (4) if not, whether the claimant's impairment prevents her from performing her past relevant work; and (5) if so, whether the claimant can perform any other work that exists in the national economy, in light of her age, residual functional capacity. education, work experience and 20 C.F.R. §404 .1520 (a) (4). claimant is found disabled or not disabled at any step, inquiry is unnecessary. If the further Id. In this case, plaintiff challenges the ALJ's findings at step 5 that there are other jobs available which the claimant was capable of performing from her alleged onset date of December 5, 2007, through March 2, 2010 I consistent ~A072 (Rev 8/82) - 5 with her vocational factors and residual functional capacity.l Plaintiff argues that the ALJ erred at step 5 because he failed to indicate what weight, if any, he gave to the opinion of her treating physician and a consulting physician who examined her. For reasons explained below, the court agrees. Dr. Lynn Potts, who was plaintiff's treating physician, completed a Medical Source Statement of her ability to perform physical work related activities. (R. 387-90). that less plaintiff could lift/carry than Dr. Potts found ten pounds only occasionally, and she could stand/walk less than two hours in an eight hour workday with an unlimited ability to sit. Dr. (R. 387-88). Potts indicated that plaintiff could never climb, could occasionally kneel, crouch, crawl and stoop. but she (R. 388). According to Dr. Potts' assessment, plaintiff would be limited to sedentary work, not light work as the ALJ found. §§404.1567(a) and (b) (stating that lifting no more than 10 pounds at a sedentary time, See 20 C.F.R. work involves whereas light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and may involve a good deal of walking or standing) with regard to Dr. Potts' opinion of plaintiff's physical capabilities, the ALJ simply stated that he "fully considered the conclusions of Dr. Potts . . that the claimant can perform no idual 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. §404.1545(a) (1). In assessing a claimant's residual functional capacity, the ALJ is required to consider the claimant's abil to meet the physical, mental, sensory and other requirements of work. 20 C.F.R. §404.1545(a) (4). <llI.Aon (Rev. 8/82) - 6 more than sedentary activity. However, it is noted that this report was not made until June 4, 2010, when it appears that the claimant's condition may have worsened." 2 (R. 26). Contrary to the Regulations, the ALJ did not analyze Dr. Potts' evaluation of plaintiff set forth on the Medical Source Statement, and he failed to state the amount of weight, if any, that he would attribute to her opinion, and the reason for his decision in that regard. 20 C.F.R. §404.1527(c) (2) (stating, See "[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion"). The ALJ's failure to evaluate the opinion of plaintiff's treating physician, and to indicate the amount of weight that should be accorded to the opinion, is contrary to Social Security Regulations and Third Circuit case law. Accordingly f S.S.R. 96-2Pi Plummer, 186 F.3d at 429. this case must be remanded for addi tional development by the ALJ at step 5. A further basis for remand relates to the ALJ's consideration of the report and evaluation by Dr. Bushra Haider, who performed a consultative examination of plaintiff on October 8, 2009, at the request of the Bureau of Disability Determination. (R. 338-45). The ALJ noted in his decision some of the findings made by Dr. 2The Commissioner argues that plaintiff's reliance on Dr. Potts' op~n~on is misplaced because it was rendered several months after the ALJ found that plaintiff became disabled, and the opinion does not indicate that it relates back to the period at issue, i.e., her alleged disability onset date of December 5, 2007, until March 2, 2010. To the extent there is any question about the period of time to which Dr. Potts' opinion relates, the ALJ may clarify that matter with Dr. Potts upon remand. In any event, it remains that the ALJ failed to fy the amount of weight, if any, he gave to Dr. Potts' opinion, and whether he discounted it because he thought that it did not relate to the period at issue, or for some other reason. ~.AO 72 (Rev. 8/82) - 7 Haider/ he (R. 24) / afforded capabilities/ but never stated the amount of weight, if any, Dr. Haider's assessment of plaintiff's physical nor did he specify any reasons for crediting or discounting Dr. Haider's assessment. See 20 C.F.R. §404.1527(c) (stating that " [r]egardless of its source, we will evaluate every medical opinion we receive" and listing factors that are considered in deciding the weight to give any medical opinion). This matter likewise must be addressed on remand. On remand, the ALJ shall consider the opinions of Dr. Potts and Dr. Haider as discussed herein. The ALJ shall indicate the amount of weight, if any, that he attributes to the evaluations and opinions of these doctors, and explain the reasons for his decision. Depending on the amount of weight the ALJ affords the opinions of Dr. Potts and Dr. Haider, he shall, if necessary, reassess plaintiff's residual functional capacity in light of any revised findings that he makes and pose a hypothetical question to the vocational expert that accounts for any such revised findings. 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 Memorandum Judgment Order. ~~ Gustave Diamond United States District Judge <!l;,AOn (Rev, 8/82) 8 this cc: James C. Ward, Esq. Porta-Clark & Ward 100 Fleet Street Suite 101 Pittsburgh, PA 15220 Paul Kovac Assistant U.S. Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219 ""'A072 (Rev 8/82) - 9
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