WILLIAM L. STANDISH, District Judge.
Plaintiff, Angela Lee Dunkle, seeks judicial review of a decision of Defendant, Commissioner of Social Security ("the Commissioner"), denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI, respectively, of the Social Security Act, 42 U.S.C. §§ 401-433 and §§ 1381-1383f.
Plaintiff filed applications for DIB and SSI on June 5, 2008, alleging disability since April 1, 2008 due to high cholesterol and mental illness. (R. 125-31, 132-37, 159). Plaintiff's applications were denied and she requested a hearing before an administrative law judge ("ALJ"). (R. 88).
The ALJ issued a decision on October 5, 2009, denying Plaintiff's applications for DIB and SSI based on his determination that Plaintiff retained the residual functional capacity ("RFC") to perform work existing in significant numbers in the national economy.
Plaintiff testified at the hearing before the ALJ as follows:
Plaintiff was born on July 11, 1972,
Plaintiff receives treatment at the Irene Stacey Community Mental Health Center for anxiety and depression. She sees a therapist once a month and a psychiatrist for medication checks every 2 to 3 months. When anxious, Plaintiff picks at her arms and legs causing open sores. At the time of the hearing, Plaintiff was being treated for a Methicillin-Resistant Staphylococcus Aureus ("MRSA") infection in the sores on her legs.
As to activities of daily living, Plaintiff can perform routine household chores and care for her own personal needs, but she does not go out by herself due to anxiety and panic attacks from being around other people. As a result, Plaintiff does not go grocery shopping unless she is accompanied by her mother. (R. 42-43). Plaintiff spends a couple of hours each day in a recliner because her legs "bother" her when she stands too long. Plaintiff does
On May 12, 2007, Plaintiff went to the Emergency Room of Armstrong County Memorial Hospital complaining of swelling, blisters, redness and pain in her right lower extremity. Plaintiff's physical examination revealed "an extensive area of large bulla (blisters) just below the level of the knee with thickened red skin extending from the mid thigh on its medial and anterior surface all the way to the lower leg nearly to the level of the ankle." In addition, Plaintiff had "some healed abrasions and what appeared to be small abscesses that had healed as well." (R. 206). Plaintiff's primary diagnosis was cellulitis, and a culture of a wound on her right leg was positive for MRSA infection.
On May 29, 2007, Plaintiff was seen by Dr. Richard A. Mercurio, her primary care physician, for a wound check.
During a follow-up visit with Dr. Mercurio for a wound check and generalized anxiety disorder ("GAD") on June 19, 2007, Plaintiff continued to report insomnia, depression and anxiety. Dr. Mercurio increased the dosage of Klonopin prescribed for Plaintiff. (R. 246-48).
Despite the medications prescribed by Dr. Mercurio, during a follow-up visit with Tasha Dodd, his physician's assistant ("PA"), on July 16, 2007, Plaintiff presented with large open lesions on her right leg. The dosage of Prozac prescribed for Plaintiff was increased and Bactroban ointment was prescribed to treat Plaintiff's leg wounds. (R. 244-45).
During a follow-up visit with PA Dodd on July 23, 2007, it was noted that the ulceration on Plaintiff's right leg was smaller since her last visit; however, Plaintiff had four small lesions on her left lower leg. With regard to Dr. Mercurio's referral of Plaintiff for a psychiatric evaluation, Plaintiff reported that she could not get an appointment until September. (R. 242-43).
On August 13, 2007, during a follow-up visit with PA Todd, Plaintiff presented with new lesions on her right lower leg. Dr. Mercurio was consulted, and he recommended a surgical consultation with Dr. Christine Edwards for "MRSA/cellulitis." (R. 240-41).
During a follow-up visit on September 12, 2007, Dr. Mercurio noted that Dr. Edwards prescribed DuoDerm patches for the lesions on Plaintiff's right leg which had improved. Dr. Mercurio also noted
On October 11, 2007, Plaintiff was evaluated by Dr. Grace McGorrian, a psychiatrist, at the Irene Stacy Community Mental Health Center in connection with the repeated picking of her arms and legs. Plaintiff reported "problems with impulsive behaviors for probably two decades," including regular continual overeating and "problems with checking such things as her car lock." With respect to Plaintiff's mental status examination, Dr. McGorrian noted that Plaintiff was quiet and cooperative; that she displayed no increase in psychomotor activity or psychotic thinking; that her intellect appeared to be low average; that her answers to questions were appropriate and goal directed; that she seemed unconcerned about the severity of her problem; that her judgment appeared adequate because she understood the need for treatment; and that her insight was quite limited.
During a medication check with Dr. McGorrian on November 19, 2007, Plaintiff reported that she had had a terrible month due to verbal abuse by her boss at the convenience store job. Plaintiff also reported that the new medications had "made absolutely no difference," ... "if anything she is worse." Plaintiff was tearful and the lesions on her legs were no better. Dr. McGorrian recommended that Plaintiff pursue a new job and made several adjustments to her medications. (R. 275).
Plaintiff was seen by Dr. Mercurio for a follow-up visit on December 12, 2007. Plaintiff reported increased insomnia, anxiety and depression, and she had blisters on her right thigh. (R. 233-36).
By the time of her medication check with Dr. McGorrian on February 7, 2008, Plaintiff had changed jobs and she was assisting in the care of her niece due to her sister's incarceration. Plaintiff reported
During a follow-up visit with Dr. Mercurio on March 13, 2008, Plaintiff presented with cellulitis and an abscess on her right leg. The doctor noted that Plaintiff seemed to begin picking her leg again after the Klonopin was discontinued, and he described this condition as "acute progressing." Plaintiff also reported "[a] lot of fatigue" due to insomnia, as well as back pain. Dr. Mercurio prescribed Klonopin and Bactroban ointment for Plaintiff. (R. 229-32).
During a medication check with Dr. McGorrian on May 1, 2008, Plaintiff reported that she was working at McDonald's and that her supervisor was very nice and made accommodations for her when she was feeling stressed. Plaintiff also reported increased mutilation of her leg due to the stress of the job transition and increased difficulty sleeping. Dr. McGorrian's examination of Plaintiff's right leg showed "a number of prior bruised and scarred areas that [looked] gouged and scabbed." Dr. McGorrian adjusted Plaintiff's medications "in the hopes we can control her self-mutilation." (R. 273).
Plaintiff was seen by Dr. Mercurio for a follow-up visit on May 12, 2008. She reported continued picking of the right leg, which had scabs and sores. Plaintiff's diagnoses were cellulitis, insomnia and fatigue. (R. 224-27).
During a medication check on June 2, 2008, Dr. McGorrian noted that Plaintiff was being seen on an "urgent" basis at her mother's request because Plaintiff's gouging of her legs had increased since she started working at McDonald's and Dr. Mercurio recommended that she stop working. Plaintiff reported that she wanted to work and had always worked, but that the stresses at work and the feelings she gets around other people increase the chance that she will harm herself. Despite taking all of her prescribed medications, Dr. McGorrian noted that Plaintiff was tearful and her lip was quivering during the appointment. Plaintiff's lower legs were marked, bruised and gouged with some areas of fresh bleeding. In addition, Plaintiff's abdomen had multiple areas that she had gouged. Dr. McGorrian noted that Plaintiff's illness was "more active" and had not responded to current treatments. Dr. McGorrian prescribed new medication for Plaintiff and considered LTSR (Long Term Structured Residence) if Plaintiff's self-harm continued at a high pace. (R. 272).
Plaintiff saw Dr. Mercurio for a follow-up visit on August 11, 2008. Her physical examination revealed sores on both legs and her abdomen. Dr. Mercurio described Plaintiff's history as follows: "Disabled, permanently, due to depression, self inflicting wounds, high cholesterol, wt. problems, can't walk or stand for very long, knee pain, trouble getting up and down. L. knee is worse. Has severe GAD." Plaintiff was instructed to continue her then current medications and she was prescribed Bactroban ointment for her leg sores. (R. 331-34).
On August 12, 2008, Edward Zuckerman, Ph.D., a non-examining State agency psychological consultant, completed a Psychiatric Review Technique form in connection with Plaintiff's applications for DIB
During a medication check with Dr. McGorrian on September 15, 2008, Plaintiff reported that her stress level had dropped since she stopped working. Once again, Plaintiff had allowed her medications to lapse. As a result, it could not be determined whether she had benefited from any of the medications. On exam, Plaintiff continued to be "very obese but much better groomed" and she was less dysphoric. Dr. McGorrian renewed Plaintiff's medications as samples and urged her to return before they ran out. (R. 316).
Plaintiff's next medication check took place on November 6, 2008. Dr. McGorrian noted that Plaintiff was "doing well," and that Plaintiff was "at home with her mother and sister taking care of the sister's brand new baby...." Plaintiff reported "some picking and scratching at her legs," but not as severely as when she was working. On exam, Plaintiff was nicely dressed; appeared to have lost some weight; was moving a little more fluidly; and looked cheerful. Dr. McGorrian indicated that she was happy with Plaintiff's progress and renewed her medications without change. (R. 315)
During a follow-up visit on November 25, 2008, Dr. Mercurio noted that Plaintiff's chronic GAD was stable on her current medications. However, plaintiff continued to report difficulty sleeping, and she had open sores on her right thigh and left lower leg. Plaintiff also reported back pain. Plaintiff's medications were continued. (R. 327-30).
In a Physical Capacity Evaluation dated November 25, 2008, Dr. Mercurio listed Plaintiff's medical diagnoses as morbid obesity, GAD, fatigue, chronic leg and back pain and anxiety. Dr. Mercurio indicated that as a result of her diagnoses, Plaintiff had decreased mobility and endurance and that she had difficulty focusing and staying on task. In an 8-hour workday, Dr. Mercurio opined that Plaintiff could sit for a total of 6 hours, stand for a total of 2 hours and would have to lie down for a total of 2 hours. The doctor also opined that Plaintiff could lift between 11 and 20 pounds. (R. 289-92).
Plaintiff reported during her next medication check with Dr. McGorrian on January 29, 2009, that she was enjoying being at home and taking care of her new niece. Because her sister was incarcerated, Plaintiff reported that she and her mother were providing most of the baby's care. Plaintiff acknowledged continued picking when criticized. Otherwise, her self-picking was not "too bad." On exam, Plaintiff was described as cheerful. No changes were made in her medications. (R. 314).
Plaintiff presented for her follow-up visit with Dr. Mercurio on March 25, 2009 with open sores on her right thigh and abdomen. Plaintiff's medications were continued. (R. 323-26).
Plaintiff's mother accompanied her to her next medication check with Dr. McGorrian on April 27, 2009. The mother reported that Dr. Mercurio was "very concerned" about Plaintiff because she has
Plaintiff brought her niece to the next medication check with Dr. McGorrian on June 1, 2009, and she was accompanied by a case manager. Plaintiff reported a definite decrease in self-mutilation since the change in her medications. She appeared more relaxed and less likely to break into tears, and she was "quite confident" with her niece. Dr. McGorrian noted an additional stressor in Plaintiff's life, i.e., her uncle was recently released from prison and moved into their house. No medications changes were made. (R. 312).
During a follow-up visit with Dr. Mercurio on June 30, 2009, Plaintiff reported that her GAD, self-picking and insomnia had improved. Plaintiff also reported that her right foot "cracks" when she walks long distances. Dr. Mercurio continued Plaintiff's medications and ordered an x-ray of Plaintiff's right ankle. (R. 319-22). The x-ray, which was performed on July 9, 2009, did not reveal evidence of an acute fracture or dislocation. (R. 318).
On July 31, 2009, Dr. Robert L. Eisler, a psychiatrist, performed a consultative evaluation of Plaintiff. During the evaluation, Plaintiff reported that she had worked since she was 16 years old; that she stopped working due to MRSA infection; that she would like to return to work but her doctor said she was not ready; that she felt "down and blue" 90% of the time; that she has severe insomnia; and that she often cries. Dr. Eisler noted that Plaintiff was "quite subdued, but personable and cooperative;" that she was of average intelligence; that her mood was "quite depressed;" that she was obese, weighing about 300 pounds; and that she had MRSA-infected lesions on her left forearm and her legs. Dr. Eisler's diagnoses were Major Depressive Disorder and MRSA infection. He indicated Plaintiff's MRSA infection had "worsened her depression;" described her prognosis as "guarded;" rated her GAF score as 30;
With respect to occupational adjustments, Dr. Eisler opined that Plaintiff's ability to follow work rules and ability to interact with supervisors were poor. As to performance adjustments, Dr. Eisler opined that Plaintiff's ability to understand, remember and carry out simple, detailed and complex job instructions was poor.
In order to establish a disability under the Social Security Act, a claimant must demonstrate an inability to engage in any substantial gainful activity due to a 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. See 42 U.S.C. § 423(d)(1). A claimant is considered unable to engage in any 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, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See 42 U.S.C. § 423(d)(2)(A).
When presented with a claim for disability benefits, an ALJ must follow a sequential evaluation process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The process was described by the Supreme Court in Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885,
493 U.S. at 525-26, 110 S.Ct. 885.
The claimant bears the burden of establishing steps one through four of the sequential evaluation process for making disability determinations. At step five, the burden shifts to the Commissioner to consider "vocational factors" (the claimant's age, education and past work experience) and determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy in light of his or her RFC. Ramirez v. Barnhart, 372 F.3d 546, 550-51 (3d Cir. 2004).
With respect to the ALJ's application of the five-step sequential evaluation process in the present case, steps one and two were resolved in Plaintiff's favor: that is, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of disability, and the medical evidence established that Plaintiff suffers from the following severe impairments: major depressive disorder, obsessive compulsive disorder ("OCD"), impulse control disorder and binge eating disorder. (R. 19-20).
Turning to step three, the ALJ found that Plaintiff's impairments were not sufficiently severe to meet or equal the requirements of any impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1, and, in particular, Listing 8.04 relating to skin disorders and Listings 12.04, 12.06 and 12.08, relating to affective disorders, anxiety related disorders and personality disorders, respectively. (R. 20-21).
Before proceeding to step four, the ALJ assessed Plaintiff's RFC, concluding that Plaintiff retained the RFC to perform a full range of work at all exertional levels with the following nonexertional limitations: (1) only simple and repetitive work; (2) no high stress work such as work involving high quotas or close attention to quality production standards; (3) no work that involves teamwork or team type activities; (4) no work involving interaction with the public; (5) no work requiring immersion of her arms or legs in fluids of any kind; (6) no work in a sterile environment; and (7) no work involving food preparation. (R. 22-26). The ALJ then proceeded to step four, finding that in light of
Finally, at step five, considering Plaintiff's age, education, work experience and RFC and the VE's testimony, the ALJ found that Plaintiff could perform other work existing in the national economy, including the jobs of surveillance system monitor, bench assembler, cleaner and document preparer. (R. 27-28).
The Court's review of the Commissioner's decision is limited to determining whether the decision is supported by substantial evidence, which has been described as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). It consists of something more than a mere scintilla, but something less than a preponderance. Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.1979). Even if the Court would have decided the case differently, it must accord deference to the Commissioner and affirm the findings and decision if supported by substantial evidence. Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.1986).
A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially "when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time."
Plaintiff's initial argument in support of her motion for summary judgment relates to the weight accorded the opinion evidence in the ALJ's decision. Specifically, Plaintiff asserts that the ALJ erred in disregarding the opinions of her long-time treating sources, Dr. Mercurio and Dr. McGorrian, and the opinion of the consultative psychiatric examiner, Dr. Eisler, each of whom rendered the opinion that Plaintiff could not perform substantial gainful activity due to her physical and mental impairments. (Docket No. 11, pp. 8-13). After consideration, the Court agrees.
With respect to the Physical Capacity Evaluation completed by Dr. Mercurio on November 25, 2008 (R. 290-92), the ALJ noted Dr. Mercurio's status as a treating source; Dr. Mercurio's diagnoses of morbid obesity, GAD, fatigue, chronic leg and back pain and anxiety; and Dr. Mercurio's opinion that Plaintiff is significantly limited by her physical limitations, i.e., a low endurance for walking, standing, pushing and pulling and a need to lie down for 2 hours during the day. The ALJ gave "little weight" to Dr. Mercurio's opinion, however, because "[Plaintiff] testified to various activities of daily living" which "is not consistent with [Plaintiff] having significant physical limitations." (R. 25).
As noted by Plaintiff with regard to the weight accorded Dr. Mercurio's opinion by the ALJ, a review of the hearing transcript shows that, in fact, very little testimony was elicited concerning her daily activities. (Docket No. 11, p. 10). Specifically, in response to questions by the ALJ, Plaintiff testified that she is able to perform routine household chores and care for her personal needs. (R. 42-43). However, the ALJ fails to address Plaintiff's further testimony that she is only able to do housework a few hours before she gets fatigued, and that she has to "spend a couple of hours in a recliner a day" due to leg pain.
In Frankenfield v. Bowen, 861 F.2d 405 (3d Cir.1988), a Social Security disability claimant appealed from a summary judgment entered in favor of the Secretary of Health and Human Services. The claimant contended that the case should be remanded to the agency for further proceedings because, among other things, the ALJ did not give proper weight to the reports of his treating physician. In reversing the judgment of the district court and remanding the case for further proceedings, the Third Circuit stated in relevant part:
Similarly, in the present case, there is absolutely no medical evidence contradicting Dr. Mercurio's assessment of the limitations resulting from Plaintiff's physical impairments. Neither a consultative medical examiner nor a State agency physician completed a physical RFC assessment for Plaintiff. As a result, the ALJ rejected Dr. Mercurio's opinion regarding Plaintiff's physical limitation based on his evaluation of the medical evidence. In so doing, he erred.
In the Questionnaire completed on August 6, 2009, Dr. McGorrian (and Plaintiff's therapist) rendered the opinion that Plaintiff is unable to sustain full-time employment due to her mental impairments. When asked to explain this opinion, Dr. McGorrian responded as follows:
(R. 300).
The ALJ rejected Dr. McGorrian's opinion because her answers in the questionnaire were "internally inconsistent." Specifically, the ALJ noted that "Dr. McGorrian stated the claimant has marked restriction in social functioning, but also stated the claimant is able to get along with others and communicate fairly well."
In the section of the questionnaire addressing the area of social functioning, Dr. McGorrian noted that Plaintiff "seems" to be able to get along with others; that she does not appear "particularly outgoing;" that her ability to initiate social contacts is limited; that she communicates fairly clearly? that she has difficulty in group
The ALJ also erred in giving more weight to the opinion of Dr. Zuckerman, the non-examining State agency psychological consultant, than the opinion of Dr. McGorrian. (R. 26). With respect to evaluating opinion evidence, the Social Security Regulations provide that "... because non-examining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for the opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources." 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3).
Dr. Zuckerman completed the Psychiatric Review Technique form in which he opined that Plaintiff was not disabled by her mental impairments on August 12, 2008, approximately two months after Plaintiff's applications for DIB and SSI were filed. Thus, Dr. Zuckerman's opinion was rendered without consideration of the notes of Plaintiff's medication checks with Dr. McGorrian between September 15, 2008 and June 1, 2009, or the opinion of Dr. McGorrian on August 6, 2009 regarding Plaintiff's inability to engage in substantial gainful activity due to her mental impairments. Further, a review of the Psychiatric Review Technique form completed by Dr. Zuckerman fails to reveal adequate supporting explanations for his opinion that Plaintiff is not disabled by her mental impairments. Brownawell v. Comm. of Social Security, 554 F.3d 352, 357 (3d Cir.2008), citing Dorf v. Bowen, 794 F.2d 896, 901 (3d Cir.1986) ("... this Court has `consistently held that it is improper for an ALJ to credit the testimony of a consulting physician who has not examined the claimant when such testimony conflicts with testimony of the claimant's treating physician.'"); Cadillac v. Barnhart, 84 Fed.Appx. 163 (3d Cir.2003) (ALJ, in social security disability benefits case, impermissibly substituted her own medical opinion for that of a physician when, in determining the claimant's RFC, she gave controlling weight to the opinions of two non-examining state agency physicians while rejecting the conflicting opinion of another non-examining physician; the state agency physicians had not had access to the claimant's complete medical record, whereas the other physician did have such access).
Based on the foregoing, judgment will be entered in favor of Plaintiff and against the Commissioner.
