SUE L. ROBINSON, District Judge.
Claudia Winward ("plaintiff') appeals from a decision of Carolyn W. Colvin, Acting Commissioner of Social Security ("defendant"), denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-434, 1381-1383f. The court has jurisdiction pursuant to 42 U.S.C. § 405(g).
Currently before the court are the parties' cross-motions for summary judgment. (D.I. 15, 16) For the reasons set forth below, plaintiff's motion will be denied and defendant's motion will be granted.
Plaintiff filed an application for DIB on April 19, 2006 alleging disability beginning on July 1, 2000 for depression. (D.l. 8 at 24, 27-29) Plaintiff's claim was initially denied on June 15, 2006 and after reconsideration on July 18, 2006.
Plaintiff sought help for depression from Richard Cruz, M.D. ("Dr. Cruz") beginning in June 1999. (D.I. 8 at 225, 227) Dr. Cruz prescribed various psychotropic medications in increasing dosages throughout plaintiff's treatment. (Id. at 214-27) Dr. Cruz generally described plaintiff as depressed with decreased energy and insomnia. (Id. at 221-227) On December 1, 1998, on a "Value Behavioral Health Outpatient Treatment Report," Dr. Cruz noted that plaintiff "presents with recurrent major depression over past 8 years ... continues to have severe decreased energy and anhedonia with difficulty concentrating and hopelessness about work and marriage." (Id. at 225) Dr. Cruz indicated plaintiff's current global assessment of functioning ("GAF")
In March 2000, plaintiff reported "slightly more energy," but with continued insomnia. (Id. at 221) In May 2000, plaintiff reported feeling "less depressed." (Id. at 219) In June 2000, plaintiff described waking up at one a.m. with vivid dreams and "remain[ing] depressed." (Id. at 219)
In August 2000, plaintiff reported feeling "more depressed with decreased energy." She feared having a fatal illness. Plaintiff reported sleeping, but having vivid dreams. Dr. Cruz increased her medications. (Id. at 218) In September 2000, plaintiff reported relief that her medical work-up was negative, but described continued dreams. Dr. Cruz noted that plaintiff had no hypomanic symptoms. (Id.) In November 2000, plaintiff described depression "over [the] illness of [her] aunt's roommate." (Id. at 219) In December 2000, plaintiff reported feeling anxious about a "heavy workload" as her daughter was returning home. Plaintiff reported having low energy. (Id. at 219) In February
There are no medical records for plaintiff's mental health treatment from May 2001 to August 2002. Dr. Ralph Burdick D.O. ("Dr. Burdick") treated plaintiff during this time and his notes indicate that plaintiff's medication included Prozac, Ativan, and Ambien. (Id. at 238, 240)
On August 1, 2002, plaintiff sought treatment from Peter Zorach, M.D. ("Dr. Zorach"), reporting feeling depressed daily for two weeks. (Id. at 270-71) Dr. Zorach assessed a GAF of 52 and prescribed psychotropic medications. (Id. at 271) On October 30, 2002, Dr. Zorach's impression was that plaintiff was "doing fairly well" with "some stress and anxiety, enough to be unpleasant." Plaintiff described keeping busy. (Id. at 269) On December 12, 2002, plaintiff reported feeling "somewhat better." Plaintiff denied suicidal ideation. (Id. at 268) Dr. Zorach noted plaintiff's condition was "improved." (Id. at 268) On January 17, 2003, plaintiff reported being "more depressed than not depressed." Plaintiff described spending time with her family over the holidays and working with floral arrangements. Plaintiff was deciding whether to work "2 days a week" or give up her work. (Id. at 267-68) On February 24, 2003, plaintiff reported "doing pretty well" and being in a "pretty good" mood. Plaintiff was working one day a week to "do some of [her] own business." Plaintiff described "cleaning up." (Id. at 267) On March 28, 2003, plaintiff cancelled her appointment. (Id. at 267)
On April 16, 2003, plaintiff described some days as "not as good" and "[e]very day a fight." Dr. Zorach's impression was that plaintiff was "struggling" and "depressed," with low energy. On April 24, 2003, plaintiff reported that she was "still depressed," "never got up, showered, dressed." (Id. at 266-67) On June 9, 2003, plaintiff described being "no better and no worse." On June 24, 2003, plaintiff described "doing a little better." (Id. at 265) From July 21, 2003 to December 19, 2003, Dr. Zorach's impression of plaintiff was that she was "doing well" or "pretty well." (Id. at 263-64) On March 5, 2004, plaintiff reported "not doing so well," three to four days per week. (Id. at 262-63) On July 14, 2004, plaintiff reported "doing pretty well" with increased energy. (Id. at 260) Such pattern continued throughout Dr. Zorach's treatment ending on March 7, 2006, with plaintiff reporting "doing pretty much the same — still depressed." (Id. at 248-260)
On May 18, 2006, Carlene Tucker-Okine, Ph.D., reviewed plaintiff's file and
On September 21, 2007, Dr. Zorach completed a questionnaire concerning plaintiff's mental health impairments, expressing his opinion regarding "the entire treatment period."
In August 2009, Brian Simon, Psy.D. ("Dr. Simon"), performed a psychological examination at the request of the state agency. (Id. at 336) Plaintiffs reported history was consistent with her hearing testimony described below. (Id. at 336-338) Dr. Simon documented that plaintiff was cooperative and well-groomed; she maintained good eye contact and her attention and concentration were fair throughout the examination; her mood was "a bit" dysphoric; her thought processes,
From June to October 2009, plaintiff received treatment at Phoenix Behavioral Health. (Id. at 346-60) On June 8, 2009, a licensed social worker completed an evaluation form and assigned plaintiff a GAF of 53.
On November 18, 2009, Dr. Abashidze completed a mental health questionnaire. (Id. at 363) Dr. Abashidze's clinical findings were: "Episodes of major depression; sadness; hopelessness; and hypomania;...; [no] motivation; energy, ... worthlessness." Plaintiff's prognosis was "poor to guarded." Dr. Abashidze provided that plaintiff had moderate difficulties in her activities of daily living, marked limitations in her social functioning, and marked limitations in her ability to maintain concentration, persistence, and pace. (Id. at 365-66)
Plaintiff's current medications include Ambien, Ability, Effexor, Wellbutrin, Xanax, and Simvastatin. (Id. at 206-07)
An administrative hearing was held on December 3, 2009. Plaintiff appeared, represented by counsel. (D.I. 8 at 24) Plaintiff was born on November 9, 1951 and was 58 years old at the time of the hearing. (Id. at 36) She graduated from high school in 1969. She worked as an ID fingerprint person, then as a secretary. After having children, she worked as a bookkeeper at a scrap yard. She then worked as a secretary for four years with "Catalytic" and thirteen years with "Getty" (the oil refinery in Delaware City), performing typical clerical work. Plaintiff lives with her husband and has two children, 38 and 34 years old. (Id. at 25-26) In 2003, she weighed 160 lbs and now weighs 168. (Id. at 36) Both of her parents were alcoholics and her mother had depression. Her mother died at 57. She does not attend church. (Id. at 38)
Her husband is in good health. He is currently a maintenance manager for an assisted living home. He retired from Chrysler in 2001, where he worked on the line. (Id. at 39)
Plaintiff testified that she became ill in 1994, going "into a very, very deep depression to the point that [she] was non-functioning, and [she] lost a lot of time at work." She felt hopeless and worthless. She lacked motivation, had suicidal thoughts and did not function very well, staying in bed most of the time. She did not know what brought on her depression. She had a hysterectomy before her depression, but did not have anything major happen in her life. (Id. at 27, 37)
Because of the depression, she took "26 weeks of full pay" off twice within a period of three years. She would take time off and then return to work; she thought this "happened two or three times." (Id. at 27-28) She was let go in April 1996. Her doctor gave her permission to go back on a part-time basis, but there were no part-time
Plaintiff received unemployment insurance in 1996 after she was severed from Getty, but did not receive worker's compensation. (Id. at 39) Plaintiff has not had any income since 2003.
Focusing on the time before March 2003, plaintiff described her depression as "totally debilitating, staying in bed all night and then getting up in the morning and going back to bed because [she] had absolutely no desire or motivation to do anything." (Id. at 29) She was under the care of Dr. Cruz and Dr. Zorach from 1999 to 2003, whom she saw weekly to bi-weekly for med changes, otherwise "usually once a month or once every six weeks." (Id. at 29-30) She also had a therapist, Deena Slade, who passed away from breast cancer, whom she saw "about every week" for about three years. She experienced a setback after Deena Slade passed away. (Id. at 30-31) She also saw therapist Jennifer Rock at Phoenix Behavioral Health in New Castle, who suddenly passed away from an aneurysm. (Id. at 31)
Before March 2003, plaintiff's average day consisted of "wak[ing] up when [she] woke up," getting up and having coffee, and "sometimes ... go[ing] back to bed, and other times [she] would just sit and brood or cry." Her "day consisted of doing nothing." (Id. at 31-33) Plaintiff did not take care of herself on her bad days, which could last "days at a time." (Id. at 34) She slept eight hours, but was in bed fourteen to sixteen hours a day. Some days were better than others. A good day consisted of getting up, showering, maybe running the vacuum and maybe going out-side to sit on the porch. Plaintiff only had six or seven good days in a month. (Id. at 33) She did not have any problems sitting, standing, or walking. She imagines she had some weight gain, some hair loss, and the irritable bowel syndrome. (Id. at 38) She did not often cook meals or clean. Her husband did most of those things. He also did and still does the grocery shopping. (Id. at 31-32) She only went to her doctor's appointments. She would see a friend once a month or talk on the phone once a month. She felt isolated in her house. Out of the house, she experienced anxiety. (Id. at 32) Plaintiff has been on several medications, but does not recall what mediation she was taking between 2001 and 2003. (Id. at 37)
Plaintiff's current medication helps with her crying spells. She has tried "the gamut" of medications. While she does not "sit and cry and brood all the time, [she is] still very unmotivated and spend[s] an awful lot of time in bed." She has considered harming herself, thinking "it would be easier to be dead than alive, because being alive hurt so much." She still feels that way, although she does not feel suicidal right now. She does not think she will get better. She just started lithium and hopes that will work. (Id. at 34) She had irritable bowel syndrome, which is under control. (Id. at 37)
At the hearing, the VE testified that, according to plaintiff's testimony, plaintiff has worked as a secretary, which is at a sedentary exertional level, skilled with an special vocational preparation ("SVP") of 6. Plaintiff's short-term part-time work as a
The ALJ posed the following to the VE:
(Id. at 40-42) The VE responded:
On cross-examination, the VE was asked to describe "any vocationally relevant limitations" on a certain exhibit. (Id. at 44) The VE responded:
(Id. at 44-45) The VE was asked if "a person with those limitations [would] be able to be employed" and responded that she did "not believe so." (Id. at 45) After reviewing Dr. Zorach's impairment questionnaire, the VE testified:
(Id. at 46) When asked specifically about the factors regarding "mental abilities and aptitudes needed to do unskilled work," the VE testified that the inability to perform on two or greater of the abilities would render the person unable to work. (Id. at 46-47)
Based on the factual evidence and the testimony of plaintiff and the VE, the ALJ determined that plaintiff was not disabled during the relevant time. The ALJ's findings are summarized as follows:
(Id. at 12-21)
Findings of fact made by the ALJ, as adopted by the Appeals Council, are conclusive if they are supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). Judicial review of the ALJ's decision is limited to determining whether "substantial evidence" supports the decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir.1986). In making this determination, a reviewing court may not undertake a de novo review of the ALJ's decision and may not re-weigh the evidence of record. See id. In other words, even if the reviewing court would have decided the case differently, the ALJ's decision must be affirmed if it is supported by substantial evidence. See id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the evidence, but more than a mere scintilla of evidence. As the United States Supreme Court has noted, substantial evidence "does not mean a large or significant amount of "evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). The Supreme Court also has embraced this standard as the appropriate standard for determining the availability of summary judgment pursuant to Federal
This standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), "which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. If "reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed." See Id. at 250-51, 106 S.Ct. 2505 (internal citations omitted). Thus, in the context of judicial review under § 405(g), "[a] single piece of evidence will not satisfy the substantiality test if [the ALJ] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence-particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion." See Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir.1986) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983)). Where, for example, the countervailing evidence consists primarily of the plaintiff's subjective complaints of disabling pain, the ALJ "must consider the subjective pain and specify his reasons for rejecting these claims and support his conclusion with medical evidence in the record." Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir.1990).
"Despite the deference due to administrative decisions in disability benefit cases, `appellate courts retain a responsibility to scrutinize the entire record and to reverse or remand if the [Commissioner]'s decision is not supported by substantial evidence.'" Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)). "A district court, after reviewing the decision of the [Commissioner] may, under 42 U.S.C. § 405(g) affirm, modify, or reverse the [Commissioner]'s decision with or without a remand to the [Commissioner] for rehearing." Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir.1984).
Title II of the Social Security Act, 42 U.S.C. § 423(a)(1)(D), "provides for the payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). A "disability" is defined as the inability to do 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 twelve months. See 42 U.S.C. § 423(d)(1)(A). A claimant is disabled "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." 42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003).
In determining whether a person is disabled, the Commissioner is required to perform a five-step sequential analysis. See 20 C.F.R. § 404.1520; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir.1999). If a finding of disability or non-disability can be made at any point in the sequential process, the Commissioner will not review
At step four, the Commissioner determines whether the claimant retains the RFC to perform his past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv) (stating claimant is not disabled if able to return to past relevant work); Plummer, 186 F.3d at 428. A claimant's RFC is "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir.2001). "The claimant bears the burden of demonstrating an inability to return to h[er] past relevant work." Plummer, 186 F.3d at 428.
If the claimant is unable to return to his past relevant work, step five requires the Commissioner to determine whether the claimant's impairments preclude him from adjusting to any other available work. See 20 C.F.R. § 404.1520(g) (mandating finding of non-disability when claimant can adjust to other work); Plummer, 186 F.3d at 428. At this last step, the burden is on the Commissioner to show that the claimant is capable of performing other available work before denying disability benefits. See Plummer, 186 F.3d at 428. In other words, the Commissioner must prove that "there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and [RFC]." (Id. In making this determination, the ALJ must analyze the cumulative effect of all of the claimant's impairments. See id. At this step, the ALJ often seeks the assistance of a vocational expert. See id.
On January 16, 2010, the ALJ found that plaintiff was not under a disability within the meaning of the Act during the relevant time period from July 1, 2000 to March 31, 2003. The ALJ concluded that, despite plaintiff's "severe" impairment (depression), she had the residual functional capacity to perform a range of sedentary to light work for an eight-hour workday, five days a week, limited to simple, routine, unskilled work with SVP 2 jobs, with low concentration and low memory. After considering the VE's testimony, the ALJ found that, while plaintiff could no longer perform her past work, there were a significant number of other jobs in the national economy, including library clerk, mail sorter and copier operator at the light exertional level and charge
Plaintiff contends that the ALJ erred in according more weight to Dr. Simon's opinion than that of Dr. Zorach, plaintiff's treating physician during the relevant time, and Dr. Abashidze. Further, plaintiff contends that the ALJ's hypothetical question did not reflect all of plaintiff's impairments, therefore, the VE's testimony does not constitute substantial evidence. Defendant disagrees and contends that substantial evidence supports the ALJ's decision that plaintiff was not disabled under the Act during the relevant time.
Plaintiff alleges that the ALJ improperly afforded the opinion of Dr. Simon significant weight over the contrary opinions of plaintiff's treating physicians. An ALJ should give "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.'" Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.2000) (quoting Plummer, 186 F.3d at 429). "[R]etrospective opinions of treating physicians are entitled to deference; [h]owever, the medical opinion must be consistent with the record as a whole." Sell, 2003 WL 22794702, at *2 (citations omitted). While contradictory medical evidence is required for an ALJ to reject a treating physician's opinion outright, such an opinion may be afforded "more or less weight depending upon the extent to which supporting explanations are provided." Plummer, 186 F.3d at 429. "When a conflict in the evidence exists, the ALJ may choose whom to credit but `cannot reject evidence for no reason or for the wrong reason.' The ALJ must consider all the evidence and give some reasons for discounting the evidence she rejects." (Id. (citations omitted).
The ALJ acknowledged that Dr. Zorach was plaintiff's treating physician during a portion of the relevant time period, but declined to afford Dr. Zorach's opinion from the "Mental Impairment Questionnaire" ("questionnaire opinion") controlling weight. The ALJ reasoned that Dr. Zorach's questionnaire opinion was "not well supported by medical signs and laboratory findings and [wa]s inconsistent with his detailed treatment records." The ALJ focused on plaintiff's improvement with medication and counseling, noting statements from Dr. Zorach that plaintiff was doing "pretty well" and plaintiff's increase in GAF score during her treatment. Dr. Zorach's treatment notes for the relevant time period, which contain references to plaintiff's complaints without other details, are inconsistent with Dr. Zorach's conclusions that plaintiff had marked restrictions in daily living, extreme difficulties in concentration, persistence and pace, and could not meet competitive work standards. For example, the ALJ noted that Dr. Zorach's treatment notes indicated plaintiff "performed some household chores and was working part-time as a floral designer and planning to start her own business." Dr. Zorach's progress notes through the day last insured indicate no reported difficulties with concentration. Plaintiff discussed with Dr. Zorach attending church and interactions with her family.
The ALJ assigned significant weight to Dr. Simon's August 2009 opinion, but dismissed the contrary questionnaire assessment by Dr. Abashidze in November 2009. The court concludes that both of these evaluations, occurring some six years after the relevant time period, are too remote as to be helpful to the determination of plaintiff's condition during the relevant time period.
Plaintiff complains that the ALJ improperly relied on plaintiff's statements made
Plaintiff asserts that the VE's testimony does not constitute substantial evidence as the ALJ's hypothetical question did not reflect all of plaintiff's impairments.
The ALJ considered all the relevant evidence and adequately discussed the bases for his RFC determination in his findings and evaluation of the evidence. The court concludes that a careful review of the entire record provides substantial evidence, sufficient to support the ALJ's finding that plaintiff could perform a limited range of light work and that jobs existed in significant numbers in the national economy that she could have performed, and that she was not disabled from July 1, 2000 to March 31, 2003.
For the foregoing reasons, defendant's motion for summary judgment will be granted and plaintiff's motion for summary judgment will be denied. An appropriate order shall issue.
At Wilmington this 9th day of October, 2014, consistent with the memorandum opinion issued this same date;
IT IS ORDERED that:
1. Plaintiffs motion for summary judgment (D.I. 15) is denied.
3. The Clerk of Court is directed to enter judgment in favor of defendant and against plaintiff.
