Opinion
Civil Action No. 02-4011.
December 17, 2003
MEMORANDUM
Plaintiff Karen D. Szczepanski seeks judicial review of the decision of defendant, Social Security Commissioner Jo Anne Barnhart, which found that she was not disabled and not entitled to disability benefits. Both plaintiff and defendant have filed motions for summary judgment. For the reasons which follow, I will grant summary judgment in favor of defendant.
I. FACTUAL HISTORY
Plaintiff was born on March 14, 1962 and was 37 years old at the time of her application for disability benefits. She completed high school and subsequently worked for the Pennsylvania Department of Public Welfare as a clerk/typist for sixteen years and then as a case worker for two and a half years until her alleged onset date of disability. She has not worked since 1998.
During the 1998 holiday season, plaintiff was also employed as a "personal shopper assistant" for six weeks. (Tr. 82, 102).
In her application for disability benefits, plaintiff writes that she became totally disabled due to ulcerative colitis beginning on July 31, 1998. Her medical records begin with an April 1991 hospitalization when she was diagnosed with "chronic active inflammatory bowel disease" and given a steroid prescription. Following treatment, plaintiff went into remission by October, 1991, but subsequently suffered from another bout of colitis in 1992, at which point her physician recommended that she have surgery to resolve her condition. (Tr. at 205) Plaintiff did not undergo surgery, but treatment with Asacol, a non-steroidal prescription, subsequently dramatically improved her symptoms. (Tr. at 226)
At times plaintiff has failed to follow her doctor's recommendations and/or altered her intake of prescription medications without instructions to do so. For example, in March, 1992, Dr. Abraham Horn, plaintiff's treating physician at the time, discussed possible courses of treatment with plaintiff "emphasizing that surgery is curative. . . ." (Tr. 186) Despite this plaintiff never elected to have surgery. Also, in March, 1998, plaintiff "self-lowered Asacol from 15 a day, to 12 a day, to 9 a day and approximately a week ago began having diarrhea. . . ." (Tr. at 256).
Progress notes taken between 1993 and 1996 indicate that plaintiff's condition fluctuated between periods of remission and flare-ups and that treatment with Asacol generally brought her symptoms under control. (Tr. at 226-33) Plaintiff complained of hearing loss in 1996, but October 1997 testing showed plaintiff's hearing to be "within normal limits." In 1997 Plaintiff was evaluated for "mild osteopenia," a reduction in bone volume to below normal levels, and in 1998 a rheumatologist diagnosed plaintiff with mild osteoporosis as a result of the high doses of steroids plaintiff had taken to control her flare-ups of ulcerative colitis and recommended an aggressive treatment of calcium, biphosphonate and vitamin D. (Tr. at 243-45)
Plaintiff continued to work despite her intermittent bouts with chronic ulcerative colitis and in 1996 was promoted from her clerk/typist position to that of caseworker. After the promotion, however her condition became aggravated again and she suffered from more severe symptoms. In December 1997, plaintiff's treating physician, Dr. Gary Lichtenstein, responded to her complaint that her job stress at the Department's Boulevard district office had worsened her symptoms by recommending that she be transferred to the Department's North district office. (Tr. at 258) He subsequently recommended that she seek consultation with a psychiatrist after her work stress had not abated and her flares persisted. (Tr. at 255)
Dr. Jack Solomon provided plaintiff with four visits of psychiatric treatment for general anxiety related to her ulcerative colitis in January and February 1998. Her anxiety did not require psychopharmacologic treatment. (Tr. at 273-74) In April 1999, a psychologist for the Pennsylvania Bureau of Disability Determination determined that "[a]lthough she has depressive symptoms and her moods fluctuate, it does not appear that she is unable to work due to emotional limitations." (Tr. at 271) In contrast, Dr. Sandra Hart saw plaintiff between October and December 1999 and recommended that plaintiff be evaluated for anti-depressant medication and consider separating from her husband In February 2000, Dr. Hart gave a negative assessment of plaintiff's mental ability to do work-related activities. On a pre-printed form, she indicated that plaintiff had poor to no ability to follow work rules, relate to co-workers, deal with the public, use judgment, interact with a supervisor, deal with work stresses, function independently, maintain attention/concentration, relate predictably in social situations or demonstrate reliability. Dr. Hart's assessment provides no explanation for her conclusions other than that plaintiff had been "chronically depressed since serious onset of ulcerative colitis." (Tr. at 356-58)
Plaintiff returned to Dr. Lichtenstein in August 1998 after quitting her job. He indicated that her condition had significantly improved in the absence of work related-stress. (Tr. at 252) Plaintiff then presented with a mild flare of ulcerative colitis in December 1998, but treatment with Asacol had put her "on her way to entire improvement," a series of events the doctor noted plaintiff had exhibited in the past. (Tr. at 250) In May, 1999, plaintiff underwent a medical review for the Pennsylvania Bureau of Disability Determination which found her condition "thoroughly interferes with all of her activities of daily living." (Tr. at 277) In June 1999, plaintiff returned to her treating doctor suffering from another active bout of colitis. (Tr. at 282) Despite this, an August 1999 assessment of plaintiff's residual functional capacity by Dr. Lichtenstein determined that she is capable of performing low stress jobs. She can sit/stand/walk in increments of two hour periods for a total of at least six hours in an eight hour day. Plaintiff can occasionally lift and carry up to ten pounds. She needs to be able to shift positions at will, to have ready access to a restroom and to take unscheduled restroom breaks during the eight hour work day. Plaintiff will experience good and bad days, and on bad days may need up to ten restroom breaks a day for fifteen to twenty minutes at a time with no advance notice. (Tr. at 359-62)
In April 2000, following plaintiff's hearing before the ALJ, but prior to the issuance of the ALJ's decision, plaintiff returned to her physician with another flare up of ulcerative colitis. Her condition responded to treatment with steroids. (Tr. at 388)
II. PROCEDURAL HISTORY
Plaintiff filed for Social Security Disability Insurance Benefits on March 18, 1999, alleging that by July 31, 1998 she had become disabled with ulcerative colitis. Plaintiff received a hearing before an Administrative Law Judge on April 7, 2000. The ALJ found that plaintiff was not disabled and not entitled to receive disability benefits. After plaintiff's request for an appeal to the Appeals Council was denied on April 26, 2002, she sought judicial review in this Court. Plaintiff's case was referred to United States Magistrate Judge M. Faith Angell for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(d)(1)(c). Magistrate Judge Angell recommended that the decision of the ALJ denying plaintiff benefits be reversed and remanded to the Commissioner for further development of the record and further proceedings pursuant to 42 U.S.C. § 405(g). Defendant filed timely objections to the report and recommendation.
The defendant filed three objections to the Magistrate Judge's report and recommendation: (1) that the magistrate judge incorrectly applied Walton v. Halter, 243 F.3d 703 (3d Cir. 2001) in finding that another hearing should be held with both a medical advisor and a vocational expert; (2) that the post-hearing medical documentation referred to by the magistrate should not be considered in a substantial evidence review of the ALJ's decision and may only be considered on the issue of remand if it is new or material or if there is good cause for its late submission; and (3) that remand for consideration of a later onset date of disability is not an option for the Court. In considering her objections, I have independently reviewed the administrative record, the report and recommendation, and the parties' submissions. For the reasons stated herein, I will not adopt the report and recommendation and will grant summary judgment in favor of defendant.
III. STANDARD OF REVIEW
Title 28 U.S.C. § 636(b)(1) requires a district court to "make a de novo determination of those portions of the [magistrate judge's] recommendations to which objection is made." It further allows the court to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."Id. See Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992); Terwilliger v. Chater, 945 F. Supp. 836, 841 (E.D. Pa. 1996). In contrast, when reviewing a decision of the Commissioner of Social Security to deny disability benefits, the district court's role is limited to determining whether the Commissioner properly applied the appropriate legal standards. The issue to be addressed on appeal from a denial of benefits is whether the Commissioner's decisions are "supported by substantial evidence in the record." Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). "Substantial evidence is `such relevant evidence as `a reasonable mind might accept as adequate to support a conclusion'" after reviewing the entire record, but it may be less than a preponderance. Id., quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). "Overall, the substantial evidence standard is deferential and includes deference to inferences drawn from the facts if they, in turn, are supported by substantial evidence." Shaudeck v. Commissioner, 181 F.3d 429, 433 (3d Cir. 1999), citing Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986).IV. DISCUSSION
Defendant's determination that plaintiff did not qualify for a disability insurance benefits award was based on substantial evidence, and as such, will not be overturned. Claimants must demonstrate that they suffer from a "disability" as defined by the Social Security Act in order to receive a benefits award. A "disability" is defined as:
Plaintiff met the disability insured status requirements of the Social Security Act on July 31, 1999, the date she stated she became unable to work and continues to meet them through December 31, 2003.
the inability to engage in any substantial 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 . . . [The] physical or mental impairment or impairments [must be] 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(1)(A) (d)(2)(a). The Social Security Administration has adopted a system of sequential analysis for the evaluation of disability claims for disability insurance benefits. 20 C.F.R. § 404.1520.
The five steps in the sequential analysis system can be summarized as follows:
1. If the claimant is working or doing substantial gainful activity, a finding of not disabled is directed. If not, proceed to Step 2. 20 C.F.R. § 404.1520(b).
2. If the claimant is found not to have a severe impairment which significantly limits his or her physical or mental ability to do basic work activity, a finding of not disabled is directed. If there is a severe impairment, proceed to step 3. 20 C.F.R. § 404.1520(c).
3. If the impairment meets or equals criteria for a listed impairment or impairments in Appendix 1 of Subpart P of Part 404 of 20 C.F.R. a finding of disabled is directed. If not, proceed to Step 4. 20 C.F.R. § 404.1520(d).
4. If the claimant retains residual functional capacity to perform past relevant work, a finding of not disabled is directed. If it is determined that the claimant cannot do the kind of work he or she performed in the past, proceed to Step 5. 20 C.F.R. § 404.1520(e).
5. The Commissioner will then consider the claimant's residual functional capacity, age, education, and past work experience, in conjunction with the criteria listed in Appendix 2 to determine if the claimant is or is not disabled. 20 C.F.R. § 404.1520(f).See, e.g., Santise v. Schweiker, 676 F.2d 625, 926-27 (3d Cir. 1982).
The ALJ used the sequential evaluation process to find that plaintiff was not employed, had a combination of impairments including inflammatory bowel disorder/ulcerative colitis, osteoporosis of the left hip and depression. Although severe, at step three the ALJ found none of the impairments met or equaled the requirements of the listings for chronic ulcerative colitis or affective disorders or any other listing or combination thereof. (Tr. at 31) Under step four of the sequential evaluation, plaintiff was determined to be unable to perform her prior relevant work as a caseworker or clerk/typist. Since plaintiff could not perform her past relevant work, the ALJ considered whether she could perform other work in the national economy as required by step five. Based on the vocational expert's testimony which considered plaintiff's specific work restrictions, including the need for a low stress environment, controlled exposure to extreme heat and humidity and easy access to a bathroom, the ALJ determined plaintiff could work as a bookkeeper/auditing clerk, insurance adjustment clerk, or information clerk. (Tr. 37-38) Accordingly, the ALJ denied the award of disability insurance benefits to plaintiff.
Affective disorders are "[c]haracterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04.
Plaintiff argues that the ALJ failed to weigh and analyze all of the evidence and did not sufficiently explain why she rejected evidence from the treating and examining sources. "The ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding." Shaudeck v. Commissioner, 181 F.3d 429, 433 (3d Cir. 1999), citing Cotter v. Harris, 642 F.2d 700, 705-06 (3d Cir. 1981). The ALJ properly weighed the evidence presented by plaintiff and provided a sufficient explanation for her decision not to award benefits to plaintiff.
Although plaintiff's treating physician indicated that her medical condition met listing 5.06B, the ALJ found that "[n]o treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairment." (Tr. at 31) The ALJ therefore appropriately chose not to rely on Dr. Lichtenstein's response to an interrogatory asking whether plaintiff's condition met a listing requirement. The ALJ explained that she found
"Chronic ulcerative or granulomatous colitis (demonstrated by endoscopy, barium enema, biopsy, or operative findings). With . . . [p]ersistent or recurrent systemic manifestations, such as arthritis, iritis, fever, or liver dysfunction, not attributable to other causes. . . ." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 5.06(B).
that the medical evidence submitted by Dr. Lichtenstein . . . indicating that the claimant's condition meets listing 5.06B is not supported by the record. . . . Neither the documented medical reports nor claimant's testimony show that the claimant had persistent and recurrent systemic manifestations such as arthritis, iritis, fever or liver dysfunction not attributable to other causes. . . .
(Tr. at 31) Dr. Lichtenstein provided no explanation for his conclusion that plaintiff met the requirements contained in listing 5.06B (indeed, he did not even provide a date for when the plaintiff first satisfied the listing criteria). (Tr. at 300) The ALJ clearly explained she would not use this evidence to determine if plaintiff met a listing. (Tr. at 32). Instead of relying on this unsupported conclusion, the ALJ considered the substance of Dr. Lichtenstein's records of plaintiff's treatment and plaintiff's other medical records in her determination that plaintiff's symptoms did not rise to the levels required by the listings.
Plaintiff asserts that the ALJ should have addressed listing 5.08B in her decision because her weight met the first prong of the listing and because her other laboratory findings were "near listing level." In determining whether a claimant meets a listing, an ALJ should not look beyond the medical evidence of signs, symptoms and laboratory findings. 20 C.F.R. § 404.1526(a). Although near the listing level, the laboratory findings do not meet the listing requirements and to grant an award of benefits for medical results which only approximate the numbers required by the listing would render the listing requirements meaningless. Further, while plaintiff's weight may have fallen within the boundaries set by the listing on one doctor's visit, she did not present evidence that her weight persisted at this level for at least a three month period with an expected duration of twelve months as required by the listing.
In concluding that plaintiff's depression did not meet the section 12.04 listing requirements for affective disorders, the ALJ reasonably chose to limit her reliance on the conclusions of Sandra Hart, Ph.D., plaintiff's treating psychologist, as her report consisted solely of a completed pre-printed medical assessment form which included little explanation for her conclusions. (Tr. 356-58) The Third Circuit has stated that "[f]orm reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best." 994 F.2d 1058, 1065 (3d Cir. 1993).
Plaintiff stated that her symptoms began to increase when she was promoted to caseworker and had to become involved in other people's health and welfare. (Tr. 92) Consistent with his evaluation of her residual functional capacity, Dr. Lichtenstein thus recommended that plaintiff stop working in the high stress position of caseworker. (Tr. 92, 281) The ALJ recognized this when she determined plaintiff lacked the residual functional capacity to return to her former employment under step four of the sequential analysis. (Tr. 37) Dr. Lichtenstein did not, as plaintiff contends, recommend that she stop working altogether.
It is the ALJ's responsibility to consider the claimant's subjective complaints in determining the extent to which she is disabled. See Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). Here, the ALJ concluded that plaintiff had a discernible medical condition that could reasonably cause the symptoms plaintiff complained of. Although the ALJ did not find plaintiff's complaints to be fully credible, she clearly afforded them a significant amount of weight in making her determination of plaintiff's residual functional capacity. She found that plaintiff could perform simple, low stress, sedentary work, with additional nonexertional limitations, including easy access to a bathroom and the ability to take up to six bathroom breaks during an eight hour work day. The ALJ's ruling is supported by substantial evidence in the record. She did not "rely solely on [her] own non-expert observations" in making her determination. Contra Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983) (holding the ALJ's opinion was not supported by substantial evidence).
Dr. Lichtenstein's own August 1999 assessment of plaintiff's residual functional capacity concluded that plaintiff could work in an environment meeting these requirements with the only distinction being that plaintiff may need up to ten restroom breaks a day. (Tr. at 359-62) The ALJ found that this assessment of the frequency and numerosity of plaintiff's required bathroom breaks was "based on the claimant's assessment of her impairments during flare periods" and that during a non-flare status, plaintiff should be able to perform work. (Tr. 36) Plaintiff's medical records indicate that her symptoms improved as her flares subsided. (Tr. 250-51, 260-63) The ALJ also noted that even if plaintiff did need to use the restroom ten times a day, "4 or so could be experienced in non-work hours, and would not affect the claimant's ability to perform work." (Tr. 36) A reasonable mind might accept this evidence as adequate to accept the ALJ's conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971).
During the period at issue, it appears that plaintiff sought medical treatment for her colitis on only five occasions.
Plaintiff further argues that the ALJ failed to give adequate weight to her treating physician's most recent medical reports. This post-hearing medical documentation was submitted after the date of plaintiff's hearing and after the date of the ALJ's decision. Reliance upon a post-hearing medical report "exceeds the Secretary's statutory authority, as he is clearly mandated by statute to determine a claimant's disability `on the basis of evidence adduced at the hearing.'" Johnson v. Bowen, 699 F. Supp. 475, 481 (E.D. Pa. 1988), quoting Allison v. Heckler, 711 F.2d 145, 147 (10th Cir. 1983), citing 42 U.S.C. § 405(b)(1). Later submitted evidence may be considered only when a case is remanded to the Commissioner and when there is "good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405 (g). The ALJ therefore did not err in omitting these reports from her deliberation.
Plaintiff also asserts that the ALJ erred by not having a Medical Advisor present at her hearing to guide her determination of whether plaintiff's conditions met or equaled the requirements for a listed impairment. A medical advisor was not required. State agency physicians consider the listings prior to completing a disability determination and will indicate on the transmittal forms if any listing is met or equaled. See Social Security Ruling (SSR) 96-6p, July 12, 1996, 1996 WL 374180 (S.S.A.). These forms represent the state agency physicians' opinions regarding medical equivalence and their assessment of plaintiff's functional abilities and were a part of the record considered by the ALJ. (Tr. at 122-123, 311-326) An ALJ is only required to obtain an updated opinion on medical equivalence when there is additional medical evidence that she believes might "change the state agency medical or psychological consultant's finding" or that the "symptoms, signs and laboratory findings reported in the case record suggest that a judgment of equivalence may be reasonable." SSR 96-6p, July 2, 1996, 1996 WL 374180 (S.S.A.). Plaintiff's detailed medical history covering approximately eight years of treatment for her condition were apparently sufficient to satisfy the ALJ that there was nothing in the record that she believed might change the state agency findings or suggest that a judgment of medical equivalence would be reasonable. Further, the ultimate decision concerning the disability of a claimant is reserved for the Commissioner. See 20 C.F.R. § 404.1527(e) (1999).
While plaintiff's condition is unfortunate and has undoubtedly caused her discomfort and distress, it would be unfair to award her with disability insurance benefits when the ALJ properly concluded the evidence does not demonstrate that her condition meets a listing. Substantial evidence supports the ALJ's conclusion that Plaintiff was not disabled. Therefore I conclude that plaintiff is not entitled to a benefits award and I will grant summary judgment in favor of defendant. If plaintiff believes her condition has worsened since the date of the ALJ's decision and now meets the listing requirements, her recourse is to file a new application for disability insurance benefits.
ORDER
AND NOW, this day of December 2003, after considering the parties' cross-motions for summary judgment, and after review of the Report and Recommendation of the United States Magistrate M. Faith Angell, IT IS ORDERED that:
1. The Report and Recommendation is NOT ADOPTED;
2. The Plaintiff's motion for summary judgment is DENIED;
3. The Defendant's motion for summary judgment is GRANTED.
Judgment is hereby ordered in favor of defendant, Jo Anne B. Bernhart, Commissioner of Social Security and against the plaintiff, Karen D. Szcezepanski.