MARTIN C. CARLSON, Magistrate Judge.
This is an action brought by Plaintiff, Theresa J. Putman, an adult individual who resides in the Middle District of Pennsylvania, under 42 U.S.C. §405(g) seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying Ms. Putman's application for disability insurance benefits under Title II of the Social Security Act. This matter has been assigned to the undersigned United States Magistrate Judge on consent of the parties, pursuant to the provisions of 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Doc. 18; Doc. 19). For the reasons expressed herein, the Commissioner's decision shall be
In 2001, the lives of Ms. Putman and her family were marked by a tragedy, when Ms. Putman's 23-year-old daughter died of a brain injury she sustained after having a physical altercation with her husband, while trying to leave him, an altercation occurred in front of Ms. Putnam's three-year-old grandson. (Admin. Tr. 571). Although Ms. Putman attempted to return to work approximately one month after her daughter's tragic death, she reported that she was unable to resume her duties as a result of several psychiatric symptoms that frequently manifested during the workday, including crying spells, severe headaches, inability to concentrate, and panic attacks. (Admin. Tr. 44).
On January 20, 2012, nearly eleven years after this tragic episode, Ms. Putman filed a Title II application for disability insurance benefits. She alleges that as of July 17, 2001, the functional limitations and symptoms associated with the following impairments made it impossible for her to work: anxiety/panic attacks, severe depression, fibromyalgia, and diabetes. (Admin. Tr. 172).
In this case, the period relevant to Ms. Putman's application for benefits in this case is a narrow one. Given the date at which her insured status expired, Ms. Putman must show that she was under a disability between July 17, 2001, and December 31, 2006. Her task in this case is especially difficult given that Ms. Putnam had only limited medical care available between 2005 and 2007 by virtue of the fact that she temporarily relocated to Kuwait with her husband for his employment. Christopher Flynn, the physician who oversaw Ms. Putman's care while she lived abroad, authored a letter explaining that he could not produce notes from his visits with Ms. Putnam. He was, however, able to report that he treated Ms. Putman for recurrent major depression, insomnia, and panic disorder with agoraphobia while he held his post at the US Embassy in Amman in Jordan. (Admin. Tr. 825). He described Ms. Putman as a "courageous 48 year old woman who chose to live overseas in a Middle East city (Kuwait) during a time of war in neighboring Iraq."
Dr. Flynn's description of Ms. Putman's psychiatric symptoms as either intermittent or "undulating" appears to be consistent with other treatment notes during the relevant period. In May 2002, Ms. Putman's treating psychiatrist, Dr. Gregory Montoya, observed that Ms. Putman score an 8.5 (in the normal range of mood functioning) on the Beck Depression Inventory with no suicidal ideation. (Admin. Tr. 402). He also noted, however, that Ms. Putman was becoming increasingly symptomatic, and noted several situational stressors that appeared to be causing Ms. Putman a great deal of additional stress.
This reprieve, however, was short lived. In April 2003, Ms. Putman reported that she had a panic attack after she was diagnosed with Diabetes. (Admin. Tr. 390). In June 2003, Dr. Montoya reported that Ms. Putman scored a 14 (mild depressive symptoms) on the Beck Depression Inventory with no suicidal ideation. (Admin. Tr. 388). In September 2003, Dr. Montoya reported that Ms. Putman scored a 11 ½ (mild depressive symptoms) on the Beck Depression Inventory with no suicidal ideation. (Admin. Tr. 386). Ms. Putman reported that she experienced approximately ten panic attacks over the past twelve weeks, and that these attacks were triggered by stress. Id. Ms. Putman also reported that she applied and was interviewed for a job, but that she was not hired after she "wound up crying during the interview." (Admin. Tr. 386). In January 2004, Dr. Montoya noted that Ms. Putman was highly stressed, and, therefore, would be more depressed and anxious, and more prone to panic attacks. Her primary stressor at this time was dealing with the possibility that her daughter's ex-husband could be granted early release from prison. (Admin. Tr. 383).
In April 2004, Dr. Montoya reported that Ms. Putman scored a 18 ½ (intermediate depressive symptoms) on the Beck Depression Inventory with no suicidal ideation. (Admin. Tr. 377). On June 11, 2004, Dr. Montoya reported that Ms. Putman scored a 34 (severe depressive symptoms) on the Beck Depression Inventory with no suicidal ideation. (Admin. Tr. 375). On June 25, 2004, Ms. Putman reported that she recently attended her ex-son-in-law's parole hearing. (Admin. Tr. 373). On examination she exhibited marked psychomotor slowing and a significantly gloomy affect.
During the initial level of administrative review, Ms. Putman's claim was assessed by a nonexamining psychologist Arlene Rattan. On March 1, 2012, Dr. Rattan opined that there was insufficient information in the file to make any decision regarding the severity of Ms. Putman's mental impairment as of her date last insured. (Admin. Tr. 78-79).
Ms. Putman's claim was denied at the initial level of administrative review on March 7, 2012. Ms. Putman requested further review of her claim during an administrative hearing.
On October 4, 2012, nonexamining rheumatologist Margaret Fountain opined that it was reasonable to conclude that Ms. Putman's physical impairments were non-severe (singly or combined). (Admin. Tr. 650).
On July 27, 2013, treating psychologist Deborah Snelson completed a Mental Residual Functional Capacity Questionnaire. (Admin. Tr. 820-22). In this questionnaire, Dr. Snelson assessed that Ms. Putman would have no useful ability to travel to unfamiliar places, and would be unable to meet competitive standards in the following activities: maintaining regular attendance and being punctual within customary tolerances; completing a normal workday and workweek without interruptions from psychologically based symptoms; accepting instructions and responding appropriately to criticism from supervisors; responding appropriately to changes in a routine work setting; dealing with normal work stress; understanding detailed instructions; carrying out detailed instructions; setting realistic goals or making plans independently of others; dealing with the dress of semi-skilled or skilled work; and using public transportation. Dr. Snelson also assessed that Ms. Putman would be absent from work more than four days per month as a result of her impairments. While these findings were indicative of a significant level of impairment they also reflected an assessment of Ms. Putnam's mental state significantly after the period in which she was last insured for social security disability purposes. These findings, therefore, had only a limited probative value in determining whether Ms. Putnam had been disabled from 2001 through 2006.
On August 5, 2013, Ms. Putman appeared with her attorney, and testified during an administrative hearing before ALJ Daniel Myers. Ms. Putman's husband, William David Putman, and impartial vocational expert Marilyn Stroud also appeared and testified during the administrative hearing. On September 19, 2013, the ALJ denied Ms. Putman's claim in a written decision. Following the ALJ's denial, Ms. Putman requested review of her claim by the Appeals Council of the Office of Disability Adjudication and Review. On December 31, 2014, her request was denied, making the ALJ's August 2013 decision the final decision of the Commissioner subject to judicial review by this Court.
On February 25, 2015, Ms. Putman initiated this action by filing a complaint in which she alleges that the findings of fact in the Commissioner's final decision are not supported by substantial evidence and are contrary to the law and regulations. (Doc. 1 ¶7). As relief, she requests that this matter be remanded to the Commissioner for a further hearing. On May 20, 2015, the Commissioner filed her answer to Ms. Putman's complaint. The Commissioner contends that the ALJ's decision is supported by substantial evidence and was made in accordance with the law and regulations. (Doc. 8 ¶8). She argues that the final decision denying Ms. Putman's claims should be affirmed. Together with her answer, the Commissioner filed a certified copy of the administrative transcript, including all of the evidence that was available to the ALJ when he issued his decision.
This matter has been fully briefed and is now ripe for decision. (Doc. 13; Doc. 16).
When reviewing the Commissioner's final decision denying a Social Security claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record.
To receive benefits under the Social Security Act by reason of disability, a claimant must demonstrate an inability 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 12 months." 42 U.S.C. §423(d)(1)(A);
In making this determination at the administrative level, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. §404.1520(a). Under this process, the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do his or her past relevant work; and (5) whether the claimant is able to do any other work, considering his or her age, education, work experience and residual functional capacity ("RFC"). 20 C.F.R. §404.1520(a)(4).
Between steps three and four, the ALJ must also assess a claimant's RFC. RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairment(s)."
At steps one through four, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her in engaging in any of his or her past relevant work. 42 U.S.C. §423(d)(5); 20 C.F.R. §404.1512;
Once this burden has been met by the claimant, it shifts to the Commissioner at step five to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. §404.1512(f);
The ALJ's disability determination must also meet certain basic procedural and substantive requisites. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests."
In his September 2013 decision denying Ms. Putman's claims, the ALJ found that Ms. Putman met the insured status requirement of Title II of the Social Security Act through December 31, 2006. (Admin. Tr. 21). At step one, the ALJ found that Ms. Putman did not engage in substantial gainful activity at any point during the relevant period from July 17, 2001, through December 31, 2006.
Between steps three and four of the sequential evaluation process, the ALJ assessed Ms. Putman's RFC. The ALJ assessed that Ms. Putman could perform a full range of work at all exertional levels except that:
(Admin. Tr. 23). In doing so, the ALJ accorded "limited" weight to the PRT assessment by Dr. Rattan and the medical source statement by Dr. Snelson, and "great" weight to the case analysis by Dr. Fountain. The ALJ also assessed that Ms. Putman's statements about the intensity, severity, and limiting effects of her impairments were not entirely credible.
The ALJ's assessment at steps four and five of the sequential evaluation process was informed by the testimony of VE Stroud. VE Stroud testified that an individual of the same age, and with the same education and work experience would not be able to engage in her past relevant work as a home attendant, operations clerk, or teller if she were limited to the above RFC. (Admin. Tr. 61-62). Accordingly, at step four the ALJ concluded that Ms. Putman would be unable to engage in her past relevant work. VE Stroud also testified, however, that such an individual could engage in "other work" including the representative occupations of: ticketer (DOT #229.587-018), router (DOT #222.587-038), and silver wrapper (DOT #318.687-018). (Admin. Tr. 63). VE Stroud's testimony also revealed that these three occupations exist in approximately 745,972 positions in the national economy.
Ms. Putman argues that the ALJ erred by failing to consider and explain his evaluation of the testimony of Ms. Putman's husband, David Putman. (Doc. 13 at 5). Ms. Putman asserts that the ALJ made only a short passing reference to David Putman's hearing testimony in his written decision, and, therefore, did not meet his obligation to consider the statements made by all witnesses and to explain why he credits or rejects those statements.
In response, the Commissioner contends that the ALJ's failure to consider and explain David Putman's testimony is harmless error because his testimony was cumulative of Ms. Putman's own statements and would not have changed the outcome in this case. (Doc. 16 at 28-30).
In addition to evidence from "acceptable medical sources" evidence from "other sources" may be used to show the severity of a claimant's impairments and how it affects an individual's ability to function.
Although the Commissioner's regulations relating to the evaluation of opinion evidence do not expressly apply to opinions from "other sources," she has since published guidance that specifies that the factors outlined in 20 C.F.R. §404.1527 represent the basic principles that apply to the consideration of opinions by other sources.
In this case, judged by these legal guideposts, we are constrained to agree with the Commissioner that the ALJ's failure to expressly assign a particular weight to David Putman's hearing testimony does not undermine the ALJ's ultimate conclusion. First, we note that although the ALJ did not articulate what weight was accorded to David Putman's testimony, he discussed the testimony offered at the hearing about Ms. Putman's limitations, and did make specific reference to David Putman's testimony. (
Ms. Putman argues that the ALJ's RFC assessment is defective because he failed to account for the limiting effects of the following medically determinable non-severe physical impairments: hypertension, diabetes mellitus, obesity, degenerative disc disease of the cervical spine, and carpal tunnel syndrome. (Doc. 13 at 6-8). In response the Commissioner asserts that the ALJ's RFC assessment adequately accounted for all of the functional limitations that were supported by the record. (Doc. 6 at 22).
As noted by the Commissioner, Ms. Putman supports this argument by merely pointing to the diagnoses of various physical conditions, without discussing what, if any, limitations they cause. In support of her argument, Ms. Putman relies on SSR 96-8p, which provides that:
1996 WL 374184 at *5. This principle is further underscored by 20 C.F.R. §404.1545(a)(2), which provides that "[w]e will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not `severe,' . . . when we assess your residual functional capacity."
The same ruling upon which Ms. Putman relies, however, provides that "when there is no allegation of a physical or mental limitation or restriction of a specific functional capacity, and no information in the case record that there is such a limitation or restriction, the adjudicator must consider the individual to have no limitation or restriction with respect to that functional capacity." SSR 96-8p, 1996 WL 374184 at *3. Ms. Putman has failed to point to any evidence that the diagnoses identified above actually resulted in any limitation or restriction related to any functional capacity. Accordingly, in the absence of such a showing, we are compelled to find that her argument lacks merit.
Next Ms. Putman alleges that the ALJ was prohibited from relying on the testimony of VE Stroud because the ALJ failed to resolve a conflict between VE Stroud's testimony and the Dictionary of Occupational Titles ("DOT") in violation of SSR 00-4p. (Doc. 13 at 8-10). In response the Commissioner argues that to the extent there was any conflict, the ALJ properly resolved it. (Doc. 16 at 25).
SSR 00-4p provides that:
2000 WL 1898704 at *2.
Ms. Putman's claimed challenge to the ALJ's compliance with SSR 00-4p relates to VE Stroud's testimony on the issue of productivity limitations (i.e., workplace absences) and the extent to which such limitations are tolerated in a competitive work environment. This conflict arises because the DOT does not discuss the minimum productivity/attendance requirements that an individual must meet in order to meet the demands of competitive employment. Ms. Putman asserts that the ALJ recognized this conflict in his decision, but did not elicit sufficient explanation resolving the conflict. We disagree.
SSR 00-4p provides several examples of "reasonable explanations" for conflicts which may provide a basis for relying on VE testimony, rather than DOT information, including:
2000 WL 1898704 at *2. In this case, the information at issue — the number of absences per month that would be tolerated in competitive employment — is not listed in the DOT. Further, VE Stroud explained that, instead, she formulated her opinion that a typical employer would not tolerate more than one absence per month on a combination of statistic from the Bureau of Labor Statistics and her own experience. As such, we find that the ALJ did not run afoul of SSR 00-4p when he relied on VE Stroud's testimony.
Next, Ms. Putman alleges that the ALJ erred by concluding that she did not meet the criteria of Listing 12.04 and 12.06 of 20 C.F.R. Part 404, Subpart P, Appendix 1.
In order to meet the paragraph B criteria of listings 12.04 or 12.06 a claimant must prove that he or she meets two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence or pace, and repeated episodes of decompensation, each of extended duration. 20 C.F.R. Part 404, Subpart P, Appendix 1 §§12.04, 12.06. Ms. Putman argues that the ALJ erred by finding that she had only moderate difficulties engaging in activities of daily living, maintaining social functioning, and maintaining concentration, persistence or pace. She argues that the record clearly demonstrates that she suffered from marked difficulty engaging in activities of daily living, maintaining social functioning, and maintaining concentration, persistence or pace. In response the Commissioner argues that the ALJ's determination that Ms. Putman did not have a "marked" limitation in any of the paragraph B criteria is supported by substantial evidence.
20 C.F.R. Part 404, Subpart P, Appendix 1 ("listing of impairments") provides that activities of daily living include:
20 C.F.R. Part 404, Subpart P, Appendix 1 §12.00C1. In his decision, the ALJ found that:
(Admin. Tr. 22). The ALJ also noted that Ms. Putman "managed by herself during her husband's two week work-related trips away from home," had joint custody of her deceased daughter's son, flew unaccompanied from Kuwait to the United States at least twice during the relevant period, and baked the cake for her son's wedding. (Admin. Tr. 24).
We agree with the Commissioner that the ALJ's determination that Ms. Putman did not have "marked" difficulty in activities of daily living is supported by substantial evidence. The record reflects that Ms. Putman was able to travel internationally without assistance, (Admin. Tr. 47), drive alone, (Admin. Tr. 54), do laundry, (Admin Tr. 55), prepare her own meals, (Admin Tr. 189), and maintain her own personal care, (Admin Tr. 188). The record also reflects that Ms. Putman reported that she could shop in stores, handle her own money, maintain her home, and was responsible for caring for her husband and children. (Admin. Tr. 187-94). The Commissioner also accurately notes that, although Ms. Putman cites to more recent medical records that could be found to suggest a greater degree of limitation in this area, these records are far outside the relevant period.
The listing of impairments provides that maintaining social functioning refers to a claimant's:
20 C.F.R. Part 404, Subpart P, Appendix 1 §12.00C2.
In his decision the ALJ found that:
(Admin. Tr. 22). The ALJ also noted that Ms. Putman helped both of her sons plan and decorate for their weddings. (Admin. Tr. 24).
We agree with the Commissioner that the ALJ's determination that Ms. Putman did not have "marked" difficulty in maintaining social functioning is supported by substantial evidence. The record reflects that while in Kuwait Ms. Putman went to lunch with friends, (Admin Tr. 55), tried to get out of her house every day, Id., and reported that although she disliked crowds she had no difficulty getting along with others. (Admin. Tr. 193). She also reported that she continued to engage in other social activities including talking on the phone or meeting a friend for coffee once or twice per week. (Admin. Tr. 191). The Commissioner also accurately notes that, although Ms. Putman cites to more recent medical records that could be found to suggest a greater degree of limitation in this area, these records are far outside the relevant period.
The listing of impairments provides that maintaining concentration, persistence or pace refers to, "the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." 20 C.F.R. Part 404, Subpart P, Appendix 1 §12.00C3.
In his decision the ALJ found that:
(Admin. Tr. 22).
We agree with the Commissioner that the ALJ's determination that Ms. Putman did not have "marked" difficulty in maintaining concentration, persistence or pace is supported by substantial evidence. The record reflects that Ms. Putman did, on one occasion, exhibit psychomotor slowing, this episode occurred during a brief period when Ms. Putman mistakenly discontinued one of her anti-depressant medications. (Admin. Tr. 373). Furthermore, Ms. Putman did report that she enjoys, and is able to read books, watch DVDs, study genealogy, bake, and complete small sewing projects on a daily and weekly basis. (Admin. Tr. 191). Ms. Putman also reported that she can pay attention for "average time," and finishes what she starts even though some tasks taker her longer than average to complete. (Admin. Tr. 192). The Commissioner also accurately notes that, although Ms. Putman cites to more recent medical records that could be found to suggest a greater degree of limitation in this area, these records are far outside the relevant period.
In sum, while we have great empathy for the tragedy borne by Ms. Putnam and her family since 2001, our responsibility in this setting is to determine whether the ALJ erred in assessing the evidence under a very deferential standard of review, one which requires less than a preponderance of the evidence, but more than a scintilla of proof. When we apply this standard of proof to the instant case, we are constrained to conclude that the ALJ's decision satisfied this modest threshold of proof, and must, therefore, be affirmed.
Based on the foregoing, the Commissioner's decision shall be
An appropriate order shall follow.
