DAVID STEWART CERCONE, District Judge.
Plaintiff Lisa Marie Arend ("Arend") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits under Titles II and XVI of the Social Security Act ("Act") [42 U.S.C. §§ 401-433, 1381-1383f]. The parties have filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56,
Arend protectively applied for DIB and SSI benefits on May 1, 2009, alleging that she had become "disabled" on July 1, 2007. R. at 107, 111, 135. Pennsylvania's Bureau of Disability Determination ("Bureau") denied the applications on September 25, 2009. R. at 71, 75. Arend responded on November 27, 2009, by filing a request for an administrative hearing. R. at 80-82. On February 24, 2011, a hearing was held in Seven Fields, Pennsylvania, before Administrative Law Judge ("ALJ") Brian W. Wood. R. at 30. Arend, who was represented by counsel, appeared and testified at the hearing. R. at 33-53. Dr. Fred A. Monaco, an impartial vocational expert, provided testimony about the expectations of employers existing in the national economy. R. at 54-58. In a decision dated June 8, 2011, the ALJ determined that Arend was not "disabled" within the meaning of the Act. R. at 7-26.
On August 8, 2011, Arend sought administrative review of the ALJ's decision by filing a request for review with the Appeals Council. R. at 5-6. The Appeals Council denied the request for review on October 4, 2012, thereby making the ALJ's decision the "final decision" of the Commissioner in this case. R. at 1. Arend commenced this action on November 12, 2012, seeking judicial review of the Commissioner's decision. ECF Nos. 1-3. Arend and the Commissioner filed motions for summary judgment on March 1, 2013, and April 4, 2013, respectively. ECF Nos. 9 & 11. Those motions are the subject of this memorandum opinion.
This Court's review is plenary with respect to all questions of law. Schaudeck v. Commissioner of Social Security Administration, 181 F.3d 429, 431 (3d Cir. 1999). With respect to factual issues, judicial review is limited to determining whether the Commissioner's decision is "supported by substantial evidence." 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). The Court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-1191 (3d Cir. 1986). Congress has clearly expressed its intention that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence "does not mean a large or considerable 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)(internal quotation marks omitted). As long as the Commissioner's decision is supported by substantial evidence, it cannot be set aside even if this Court "would have decided the factual inquiry differently." Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). "Overall, the substantial evidence standard is a deferential standard of review." Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
In order to establish a disability under the Act, a claimant must demonstrate a "medically determinable basis for an impairment that prevents him [or her] from engaging in any `substantial gainful activity' for a statutory twelve-month period." Stunkard v. Secretary of Health & Human Services, 841 F.2d 57, 59 (3d Cir. 1988); Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is considered to be unable to engage in substantial gainful activity "only if his [or her] physical or mental impairment or impairments are of such severity that he [or she] is not only unable to do his [or her] previous work but cannot, considering his [or 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), 1382c(a)(3)(B).
To support his or her ultimate findings, an administrative law judge must do more than simply state factual conclusions. He or she must make specific findings of fact. Stewart v. Secretary of Health, Education & Welfare, 714 F.2d 287, 290 (3d Cir. 1983). The administrative law judge must consider all medical evidence contained in the record and provide adequate explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d 955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
The Social Security Administration ("SSA"), acting pursuant to its legislatively-delegated rulemaking authority, has promulgated a five-step sequential evaluation process for the purpose of determining whether a claimant is "disabled" within the meaning of the Act. The United States Supreme Court recently summarized this process by stating as follows:
Section 105 of the Contract With America Advancement Act of 1996 ("CWAAA") amended the Social Security Act to provide that "an individual shall not be considered to be disabled" thereunder if "alcoholism or drug addiction" would be "a contributing factor material to the Commissioner's determination that the individual is disabled." Pub. L. No. 104-121, § 105; 110 Stat. 847, 852-853 (1996); 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). The Commissioner has promulgated regulations to implement the statutory mandate of the CWAAA. 20 C.F.R. §§ 404.1535, 416.935. Under the applicable regulations, the critical question is whether a claimant who is disabled as a result of drug or alcohol use would remain disabled if he or she were to stop using those substances. 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1). If his or her disability would persist even after a cessation of drug or alcohol abuse, he or she is entitled to an award of benefits. 20 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii). Conversely, if a claimant's disability would not remain in the absence of continuing drug or alcohol abuse, a finding of "materiality" is warranted, thereby requiring a denial of benefits. 20 C.F.R. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i).
In an action in which review of an administrative determination is sought, the agency's decision cannot be affirmed on a ground other than that actually relied upon by the agency in making its decision. In Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), the Supreme Court explained:
Chenery Corp., 332 U.S. at 196. The United States Court of Appeals for the Third Circuit has recognized the applicability of this rule in the Social Security disability context. Fargnoli v. Massanari, 247 F.3d 34, 44, n. 7 (3d Cir. 2001). Thus, the Court's review is limited to the four corners of the ALJ's decision. Cefalu v. Barnhart, 387 F.Supp.2d 486, 491 (W.D.Pa. 2005).
In his decision, the ALJ determined that Arend had not engaged in substantial gainful activity subsequent to her alleged onset date. R. at 13. Arend was found to be suffering from headaches, fibromyalgia, chronic mechanical back pain, chronic obstructive pulmonary disease ("COPD"), hepatitis C, a depressive disorder, an anxiety disorder, post-traumatic stress disorder, obsessive-compulsive disorder, a personality disorder, polysubstance dependence, and an injury to her right ankle. R. at 13. The injury to Arend's right ankle was deemed to be "non-severe." R. at 13. Her remaining impairments were deemed to be "severe" under the Commissioner's regulations. R. at 13; 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c). The ALJ concluded that these impairments did not meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. at 13-16.
In accordance with 20 C.F.R. §§ 404.1545 and 416.945, the ALJ assessed Arend's "residual functional capacity"
R. at 16. Arend had "past relevant"
Arend was born on July 30, 1966, making her forty years old on her alleged onset date and forty-four years old on the date of the ALJ's decision. R. at 33. She was classified as a "younger person" under the Commissioner's regulations. 20 C.F.R. §§ 404.1563(c), 416.963(c). She had the equivalent of a high school education and an ability to communicate in English. R. at 34-35, 138, 144; 20 C.F.R. §§ 404.1564(b)(4)-(5), 416.964(b)(4)-(5). Given the applicable residual functional capacity and vocational assessments, the ALJ determined that Arend was unable to maintain a full-time job whenever she was actively abusing drugs or alcohol. R. at 19. The ALJ concluded that Arend could work as a bench assembler, machine feeder or document preparer when she was not actively abusing such substances. R. at 25. Dr. Monaco's testimony established that those jobs existed in the national economy for purposes of 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).
Although Arend quit school before completing the twelfth grade, she later obtained her General Educational Development ("GED") certification. R. at 35. She went on to receive training in the area of phlebotomy. R. at 34. Arend started to work as a phlebotomist in 1989. R. at 140. She eventually got married and had three children. R. at 373. After nine years of marriage, Arend left her husband in order to free herself from an "abusive relationship." R. at 373. She started to work at a personal care home in 2003. R. at 140.
On January 1, 2005, Arend consumed sixty pills of Xanax in an attempt to take her own life. R. at 182, 372. As a result of her suicide attempt, Arend was involuntarily committed to the Western Psychiatric Institute and Clinic ("WPIC") pursuant to 50 PA. STAT. § 7302. R. at 182, 372. She was discharged from inpatient treatment two weeks later.
The Alle-Kiski Area HOPE Center, Inc. ("HOPE Center"), "provides emergency shelter for victims of domestic violence who would otherwise be unsafe or homeless." R. at 446. Arend first sought shelter at the HOPE Center on December 12, 2005. R. at 446. She periodically returned to the HOPE Center on other occasions. R. at 446. In January 2007, Arend started to work as a home health care attendant. R. at 140. She stopped working on her alleged onset date of July 1, 2007. R. at 139. At the hearing, Arend testified that she had been discharged for failing to show up for work. R. at 35. She attributed her frequent absences to domestic violence and depression. R. at 36.
Arend stayed at the Blackburn Center Against Domestic and Sexual Violence ("Blackburn Center"), a shelter for battered women, from January 30, 2008, through February 21, 2009. R. at 447. On May 14, 2009, she began an outpatient treatment program for drug and alcohol abuse offered by Family Services of Western Pennsylvania ("Family Services"). R. at 381. After her initial assessment, Arend continued to attend therapy sessions on a weekly basis. R. at 53. She returned to the Blackburn Center on June 11, 2009, and remained there until July 17, 2009. R. at 447.
On August 25, 2009, Dr. Victor Jabbour performed a consultative physical examination of Arend in connection with her applications for DIB and SSI benefits. R. at 298-310. After completing the examination, Dr. Jabbour reported that Arend could frequently lift or carry objects weighing up to three pounds and occasionally lift or carry objects weighing up to ten pounds. R. at 304. He opined that she could stand or walk for no more than one hour, and sit for "less than" six hours, during the course of an eight-hour workday. R. at 304. Arend's pushing and pulling abilities were deemed to be unlimited. R. at 304. Dr. Jabbour also indicated that Arend could engage in only occasional postural maneuvers, and that she needed to limit her exposure to heights, vibration, temperature extremes and humidity. R. at 305. Despite the severe sitting, walking and standing limitations identified by Dr. Jabbour, his examination detected "[n]o limitations in [Arend's] lumbosacral spine movement."
Dr. Lanny Detore performed a consultative psychological evaluation of Arend on August 27, 2009. R. at 311-319. Based on the findings of his evaluation, Dr. Detore asserted that Arend had "moderate" to "marked" limitations in her abilities to carry out instructions, make judgments concerning simple work-related decisions, respond appropriately to work pressures in a usual work setting, respond appropriately to changes in a routine work setting, and interact appropriately with supervisors, co-workers, and members of the general public. R. at 316. Arend's abilities to understand and remember short, simple instructions were deemed to be only "slightly" limited. R. at 316. "Slight" to "moderate" limitations were found in her abilities to understand and remember detailed instructions. R. at 316.
Dr. Sharon Becker Tarter, a non-examining psychological consultant, opined on September 24, 2009, that Arend was "able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from her impairments." R. at 322. In the narrative portion of her consultative report, Dr. Tarter stated as follows:
R. at 322. Dr. Tarter found Arend's subjective complaints to be only "partially credible." R. at 322.
Dr. Margaret Prather, a psychiatrist, examined Arend on January 26, 2010. R. at 372-374. During the examination, Arend appeared to be "anxious," "tremulous" and "quite uncomfortable." R. at 374. Dr. Prather assigned Arend a Global Assessment of Functioning ("GAF") score of fifty-five.
On August 10, 2010, a magnetic resonance imaging ("MRI") scan of Arend's lumbar spine yielded normal results. R. at 442. Arend apparently injured her right ankle on September 3, 2010. R. at 444. An x-ray of the ankle confirmed that Arend had not suffered a fracture or dislocation.
Arend experienced headaches during the fall of 2010. R. at 340. Dr. Seth H. Lichtenstein performed a neurological examination of Arend on October 12, 2010. R. at 340-343. It was recommended that an MRI scan be performed on Arend's brain. R. at 341. The MRI scan was performed one month later. R. at 342-343. No significant abnormalities were found. R. at 342. A pulmonary function test conducted on January 28, 2011, revealed that Arend was suffering from a "moderate obstructive lung defect." R. at 430-432, 439-440.
At the hearing, Arend complained of severe pain in her neck and back. R. at 37. She stated that the pain typically manifested itself anywhere from three to four times per week. R. at 37. Arend testified that she frequently found herself unable to concentrate and "afraid to leave the house." R. at 37. She insisted that it was often difficult for her to "fold a load of clothes." R. at 37.
Two case workers accompanied Arend to the hearing. R. at 48-49. Arend described one of the case workers as her "supportive living person." R. at 49. When questioned by her counsel, Arend explained that she received weekly visits from a third case worker, who was not present at the hearing. R. at 50. The testimonial record suggests that the case workers were responsible for ensuring that Arend properly adhered to her medication regimen. R. at 49.
The critical inquiry in any case involving a claimant engaged in substance abuse is whether the functional limitations which render him or her "disabled" would still exist in the absence of continued drug or alcohol consumption. Salazar v. Barnhart, 468 F.3d 615, 623-624 (10th Cir. 2006). The claimant is the party responsible for submitting evidence about his or her own medical condition. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). "The question of whether `alcoholism or drug addiction' is `a contributing factor material to' a claimant's disability generally turns on medical information unique to the claimant rather than on general conditions in the national economy." Lukaszewicz v. Astrue, Civil Action No. 10-1185, 2011 WL 2441732, at *8, 2011 U.S. Dist. LEXIS 72942, at *20 (W.D.Pa. May 27, 2011). For this reason, the claimant bears the burden of production with respect to the issue of materiality. Cage v. Commissioner of Social Security, 692 F.3d 118, 122-125 (2d Cir. 2012); Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007); Doughty v. Apfel, 245 F.3d 1274, 1278-1280 (11th Cir. 2001); Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000); Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999). A finding of materiality "must be supported by at least some medical evidence." Sklenar v. Barnhart, 195 F.Supp.2d 696, 700 (W.D.Pa. 2002). That evidence, however, need not come in the form of "expert psychiatric opinion evidence." McGill v. Commissioner of Social Security, 288 Fed.Appx. 50, 53 (3d Cir. 2008)(unpublished). "Where the effects of a claimant's underlying mental impairments cannot be separated from the effects of his or her substance abuse, a finding of materiality is not warranted." Ambrosini v. Astrue, 727 F.Supp.2d 414, 431 (W.D.Pa. 2010).
The materiality determination in this case concerns only the ALJ's finding that Arend's impairments would cause her to be "off task" for twenty percent of a standard workday.
On May 5, 2009, Arend appeared at Family Services with "disability papers," complaining of anxiety and depression related to her "attempts to leave an abusive relationship." R. at 284. At that time, Arend was drinking three to four servings of alcohol roughly three to four times per week. R. at 284. Dr. Patricia Wilkosz, a treating psychiatrist, advised Arend that her "[m]ood symptoms" would not improve as long as she was consuming alcoholic beverages. R. at 284. On that occasion, Dr. Wilkosz gave Arend a GAF rating of forty-five.
Dr. Jabbour examined Arend on August 25, 2009. R. at 298-310. In his examination report, Dr. Jabbour stated that Arend had stopped drinking alcohol one month earlier.
R. at 312. The ALJ relied on this portion of Dr. Detore's report in concluding that Arend was susceptible to relapses whenever she was around other individuals known to abuse drugs or alcohol. R. at 18-19.
The documentary record indicates that Arend did not engage in substance abuse between August 2009 and February 2010. R. at 373. On February 4, 2010, Dr. Prather assigned Arend a GAF score of fifty-five. R. at 374. It was further noted that, during the previous year, Arend's highest GAF rating had been sixty. R. at 374. At the hearing, Arend testified that she had ingested cocaine in April 2010 and August 2010. R. at 43-44. She also stated that she had not consumed an alcoholic beverage subsequent to August 2010. R. at 44-45. As of January 10, 2011, however, Arend was residing with an "abusive partner" who was engaged in the selling of cocaine. R. at 375. The ALJ took notice of the improvement in Arend's condition between August 2009 and February 2010 in determining that her "disability" was attributable to ongoing substance abuse. R. at 25.
It is worth noting that no treating or examining medical source opined that Arend's impairments would cause her to be "off task" for twenty percent of a standard workday. The ALJ appears to have given Arend the benefit of the doubt by inferring that such a limitation had existed during the relevant periods of drug and alcohol consumption. R. at 16-19. When a claimant is actively using drugs or alcohol, any determination concerning the issue of materiality is necessarily hypothetical in nature. Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir. 2003). Dr. Detore stated that Arend's "marked anxiety, fears, and poor concentration" would most likely "decrease her chances of full recovery from her substance abuse." R. at 314. This observation suggests that Arend's inability to concentrate was partially attributable to her ongoing consumption of drugs and alcohol. Given that Arend's condition improved when she was abstinent and deteriorated when she was abusing substances, the ALJ had a sufficient evidentiary basis for concluding that Arend's inability to stay "on task" was attributable to her ongoing struggles with drug and alcohol abuse. R. at 21-25.
Dr. Detore reported that Arend had "decreased concentration" and an "inability to manage or persist at work-related activities." R. at 315. In Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004), the United States Court of Appeals for the Third Circuit held that a limitation restricting a claimant to the performance of "simple one or two-step tasks" had not adequately accounted for her "deficiencies in pace." Seizing on Dr. Detore's report and the applicable language in Ramirez, Arend contends that the ALJ did not properly accommodate her "deficiencies in pace" by limiting her to the performance of "simple, routine, repetitive tasks." ECF No. 10 at 7, 14-15. In making this argument, Arend overlooks the portion of the ALJ's residual functional capacity assessment precluding the performance of work "in a fast-paced production environment." R. at 16, 21. This additional restriction accounted for Arend's pace-related deficiencies.
Arend correctly points out that, at the administrative level, the ALJ was required to decide all factual issues based on "the preponderance of the evidence." 20 C.F.R. §§ 404.953(a), 416.1453(a). She asserts that, in light of this standard, her entitlement to benefits has been established. ECF No. 10 at 15. At this stage, however, the Commissioner's findings need only be "supported by substantial evidence" in order to be regarded as "conclusive." 42 U.S.C. § 405(g). In the context of judicial review, the Commissioner's factual findings need not be established by a "preponderance of the evidence." Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971). The applicable standard of review is highly deferential. Jones, 364 F.3d at 503. Arend's invitation to reweigh the relevant evidence must be declined. Hartranft, 181 F.3d at 360 (explaining that a reviewing court cannot set aside factual findings that are "supported by substantial evidence" even if it "would have decided the factual inquiry differently").
An individual is "disabled" under the Act only if the "reason" for his or her inability to work is a "physical or mental impairment." Barnhart v. Walton, 535 U.S. 212, 217, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002). At the hearing, Arend testified that she had lost jobs because of absences caused by domestic violence. R. at 35-36. The documentary record indicates that Arend has stayed at various shelters during the relevant period of time. R. at 446-447. She apparently described herself to Dr. Detore as a "codependent individual" who needed to avoid people who were actively using drugs or alcohol. R. at 312. The ALJ recognized a connection between Arend's "drug and alcohol abuse" and "her tendency to engage in abusive relationships." R. at 18. The record suggests that Arend's inability to maintain a job was caused, at least in part, by personal distractions and difficulties unrelated to medically determinable impairments.
For the foregoing reasons, Arend's motion for summary judgment (ECF No. 9) will be denied, the Commissioner's motion for summary judgment (ECF No. 11) will be granted, and the Commissioner's "final decision" in this case will be affirmed. The record indicates that Arend remained insured for Title II benefits through December 31, 2011, which postdated the ALJ's decision by more than six months. R. at 13, 135. If subsequent periods of sobriety have demonstrated Arend's inability to work in the absence of continued substance abuse, she remains free to file new applications for DIB and SSI benefits.
