Opinion
1:15-cv-00822-TFM
02-02-2016
TRICIA MARIE RITZ, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION
I. Introduction
Tricia Marie Ritz ("Plaintiff") brought this action for judicial review of the decision of the Acting Commissioner of Social Security ("Acting Commissioner"), which denied her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 401-403, 1381-1383(f). Now pending before the Court are the parties' Cross-Motions for Summary Judgment (ECF Nos. 9, 11). The Motions have been fully briefed (ECF Nos. 10, 12, 14) and are ripe for disposition. For the reasons that follow, the Plaintiff's Motion will be GRANTED, and the Acting Commissioner's Motion will be DENIED.
II. Background
Plaintiff was born on October 15, 1979 and thus is considered a "younger person" pursuant to 20 C.F.R. §§ 404.1563(c), 416.963(c). She is a high school graduate and has had past relevant work as a pizza baker in her family's pizza shop. She is divorced and has one eight-year-old child. Ritz receives assistance with child care from her boyfriend and her parents. Ritz has not engaged in substantial gainful activity since the alleged onset date of her disability in July 2011. Ritz worked part-time at the pizza shop until April 2012, but was unable to continue this work due to panic attacks.
A. Medical Evidence
Plaintiff has several physical impairments. However, because the issues on this appeal involve only her claimed mental impairments, the factual recitation will focus only on her mental conditions. Plaintiff reports that she was raped by the fiancé of her best friend in July 2011. As a result, she has suffered anxiety, panic attacks and is unable to interact with people, particularly men. She began treatment in January 2013 with Randall Orr, M.D., and therapist Susan McAninch. She is prescribed Zoloft, Ambien, Klonopin, Topamax and Trazodone.
Ritz had previously been treated by Dr. Mehta, but records were not provided.
As summarized in Dr. Orr's notes of the initial evaluation on December 27, 2012 (R. 433-435), Ritz had been treated for posttraumatic stress disorder (PTSD) as a result of the rape. She developed nightmares, flashbacks, panic attacks and is hypervigilant. She reported being unable to go anywhere outside the home because she is afraid. She quit her job at the Pizza Wagon because she could not tolerate being around people.
Ritz has a long history of treatment for depression beginning as a teenager. Both of parents have a history of depression. Ritz had an abortive suicide attempt in the summer of 2012 and has engaged in "cutting" behavior. Dr. Orr noted that Ritz has had difficulty speaking with men since the sexual assault. Ritz declined to be referred to a female doctor because the therapist in Dr. Orr's practice was female. Dr. Orr diagnosed Ritz with PTSD and major depressive disorder. He assigned a GAF score of 45. Plaintiff was seen monthly pursuant to the treatment plan (R. 408), although the medical records do not reflect her status or progress at each appointment.
A GAF score from 41-50 is indicative of "serious" symptoms or any serious impairment in social or occupational functioning.
On December 11, 2013, Dr. Orr prepared a mental residual functional capacity (MRFC) form (R. 408-411). Dr. Orr opined that Ritz had a "fair" prognosis and a GAF score of 50. Dr. Orr opined that Ritz had been unable to work since April 2012. Dr. Orr noted that Ritz had Category IV deficits (which preclude performance more than 15% of a workday) in her ability to perform activities within a schedule, maintain regular attendance and be punctual; to complete a normal workday and work week without psychologically based interruptions; interact with the general public; and get along with co-workers or peers. On the MRFC form, Dr. Orr noted numerous other Category III deficits (which preclude performance for 10% of a workday). In sum, Dr. Orr opined that Ritz would be off-task more than 30% of a work week. He explained that Ritz "has a long history of depression and anxiety symptoms that have thus far responded minimally to medications. She is unable to concentrate, unable to tolerate even routine stress, and unable to work with others in a predictable and reliable fashion."
On January 10, 2014, Therapist Susan McAninch completed a MRFC form (R. 412-415), which reached similar conclusions with respect to Ritz' inability to engage in work. Ms. McAninch noted several additional Category IV deficits, regular suicidal ideation and a GAF score of 45. She explained that Ritz "still exhibits hypervigilance that makes it difficult for her to be out in public settings." R. 415. She further noted depression, anxiety and panic attacks that caused Ritz to self-isolate inside her home.
C. Opinion Evidence
On September 18, 2012, Marjorie Tavoularis, M.D., performed a consultative psychiatric evaluation (R. 313-321). The ALJ gave "great weight" to this evaluation. Ritz drove herself to the appointment. Dr. Tavoularis recounted that Ritz had been raped by her best friend's boyfriend in July 2011; did not tell anyone for several months; and was not believed by her friend. As a result, she lost all of her friendships. Since the rape, Ritz has had nightmares, flashbacks, is afraid to be around strangers, especially men, and began to cut herself again to relieve tension. Ritz can perform all activities of daily living (ADLs) but gets panic attacks even when alone. Ritz viewed the rape as destroying her life and has had difficulty coming to terms with it. Dr. Tavoularis opined that her social judgment was impaired - "she says she is frightened and panicky around strangers, especially men." R. 317. Dr. Tavoularis diagnosed PTSD; Anxiety Disorder, NOS with depressive features, a borderline personality disorder, and a GAF score of 40-45. Her prognosis was "guarded." Dr. Tavoularis stated: "she has been in therapy since before the rape and has not improved in function. Her current debilitation seems to be extreme." R. 318. Dr. Tavoularis opined that Ritz' ability to respond appropriately in a work setting was affected by her impairment, and that she had "marked" impairments in her ability to interact appropriately with the public and to respond appropriately to work pressures in a usual work setting. Dr. Tavoularis assessed "moderate" impairments in her ability to interact with supervisors and co-workers.
A state agency mental health consultant, Douglas Schiller, Ph. D., performed a records review and determined that Ritz had moderate restrictions in ADLs, maintaining social functioning, and maintaining concentration, persistence or pace, and had one or two episodes of decompensation. Schiller determined that Ritz did not satisfy Listings 12.04 or 12.06. Schiller further stated: "Impact of her severe anxiety/depression has resulted in less than optimal attention/concentration to work related activity; however the recent [mental] status and ADL information is consistent with adequate attention/concentration for routine work activities." R. 94. Schiller opined that Ritz' ability to work within a schedule, maintain regular attendance, work in coordination with or in proximity to others and to interact with the general public were only "moderately limited." He further opined that her ability to get along with coworkers or peers was "not significantly limited." R. 95. Schiller acknowledged that Ritz had become increasingly withdrawn, but opined that it was not clear that she could no longer manage the basic social demands of a work setting. Schiller noted that the opinions expressed by Dr. Tavoularis were inconsistent with his conclusion and appeared to "overestimate the severity of claimant's functional restrictions." R. 95.
B. Procedural History
Plaintiff filed an application for DIB and SSI on June 4, 2012, alleging disability as of July 14, 2011. Plaintiff's claims were denied at the administrative level. Thereafter, she filed a written request for a hearing, which was conducted on January 23, 2014, in Morgantown, WV, before Administrative Law Judge George A. Mills, III ("ALJ"). Plaintiff was represented by counsel and testified during the hearing, as did an impartial vocational expert ("VE").
On February 13, 2014, the ALJ issued an unfavorable decision to Plaintiff. (R. 34-46). The ALJ found that Plaintiff had numerous severe impairments but concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the requirements of the Listings and retained the residual functional capacity ("RFC") to perform light work with some additional limitations. The ALJ found that Plaintiff could not return to her past relevant work, she could nevertheless perform several other jobs that exist in significant numbers in the national economy, based on the testimony of the Vocational Expert.
The ALJ posed the following hypothetical to the VE with respect to non-exertional limitations: "simple, unskilled, routine work with only occasional contact with supervisors, coworkers, and the public; and a low-stress type of work activity, which I will define as no rapid production quotas or assembly-line type work." R. 79. The VE identified the following jobs as ones a hypothetical claimant with Plaintiff's age, education, experience, and RFC could perform: office helper, marker and mail clerk (in a business, rather than the postal service). Thus, the ALJ found that Plaintiff is not disabled within the meaning of the Act.
The ALJ recognized that Ritz had been unable to interact with people, particularly men, without having panic attacks triggered by the post-rape PTSD. However, he concluded that her testimony regarding the extent of her impairments was not fully credible, in that she was able to drive herself to the consultative exam 25 miles away. The ALJ purported to give "great weight" to the opinions of both Dr. Tavoularis and Dr. Schiller, although he did not attempt to reconcile the inconsistencies between their opinions. The ALJ gave less weight to the opinions of Dr. Orr, the treating physician, and the treating therapist.
The ALJ's decision became the final decision of the Acting Commissioner on April 24, 2015, when the Appeals Council denied Plaintiff's request for review. (R. 1-3). This appeal followed.
III. Legal Analysis
A. Sequential Evaluation Process
To qualify for disability benefits under the Act, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period." Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.C. § 423 (d)(1). When resolving the issue of whether a person is disabled, the Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520 and 416.920. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is working, (2) has a severe impairment, (3) has an impairment that meets or equals the requirements of a listed impairment, (4) can return to his or her past relevant work, and (5) if not, whether he or she can perform other work that exists in significant numbers in the national economy. See 42 U.S.C. § 404.1520; Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 545-46 (3d Cir. 2003) (quoting Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 118-19 (3d Cir. 2000)).
B. Standard of Review
The Act strictly limits this Court's power to review the Commissioner's final decision. 42 U.S.C. §§ 405(g)/1383(c)(3). "This Court neither undertakes a de novo review of the decision, nor does it re-weigh the evidence in the record." Thomas v. Massanari, 28 F. App'x 146, 147 (3d Cir. 2002). Instead, this Court's "review of the Commissioner's final decision is limited to determining whether that decision is supported by substantial evidence." Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). If the Commissioner's decision is supported by substantial evidence, it is conclusive and must be affirmed. 42 U.S.C. § 405(g). The United States Supreme Court has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971). It consists of more than a scintilla of evidence but less than a preponderance of the evidence. Thomas v. Comm'r of Soc. Sec., 625 F.3d 798 (3d Cir. 2010). Importantly, "[t]he presence of evidence in the record that supports a contrary conclusion does not undermine the Commissioner's decision so long as the record provides substantial support for that decision." Malloy v. Comm'r of Soc. Sec., 306 F. App'x 761, 764 (3d Cir. 2009).
C. Discussion
Plaintiff seeks a remand because the ALJ gave "great weight" to the opinion of Dr. Tavoularis, which would dictate a finding of disability. Plaintiff contends that the ALJ failed to accurately reflect the extent of Ritz' impairments in the hypothetical presented to the VE. Plaintiff argues that this case is similar to the recent decision of this member of the Court in Skaggs v. Colvin, 2015 WL 1842942 (W.D. Pa. 2015). The Court agrees with Plaintiff.
It is well established that the ALJ need not "submit to the vocational expert every impairment alleged by a claimant." Id. at 554 (emphasis in original). Rather, the ALJ's hypothetical "must 'accurately portray' the claimant's impairments . . ." Id. (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984)). "And that in turn means that the ALJ must accurately convey to the vocational expert all of a claimant's credibly established limitations." Id. (emphasis in original). The Court of Appeals has offered guidance as to when a limitation is credibly established:
Limitations that are medically supported and otherwise uncontroverted in the record, but that are not included in the hypothetical question posed to the expert, preclude reliance on the expert's response. Relatedly, the ALJ may not substitute his or her own expertise to refute such record evidence. Limitations that are medically supported but are also contradicted by other evidence in the record may or may not be found credible - the ALJ can choose to credit portions of the existing evidence but cannot reject evidence for no reason or for the wrong reason. Finally, limitations that are asserted by the claimant but that lack objective medical support may possibly be considered nonetheless credible. In that respect the ALJ can reject such a limitation if there is conflicting evidence in the record, but should not reject a claimed symptom that is related to an impairment and is consistent with the medical record simply because there is no objective medical evidence to support it.Id. (citations and quotation marks omitted). See also SSR 85-15 at 5-6 (emphasizing the need to make a thorough, individualized analysis of an individual's ability to handle the demands of work stress).
The Court agrees that the ALJ's RFC and hypothetical to the VE failed to account for the full extent of Plaintiff's functional impairments. The uncontroverted medical evidence from the treating physician, treating therapist and examining consultative physician reflected that Ritz suffered extreme anxiety as a result of her post-rape PTSD, especially when dealing with stangers and men. The medical professionals who examined Ritz opined that she had "marked" limitations in her ability to deal with normal work stress. Indeed, the consultative state physician, Dr. Tavoularis, opined that "Ritz' current debilitation seems to be extreme." R. 318.
The only contrary opinion came from Dr. Schiller, who merely performed a records review. Dr. Schiller noted that his opinion (which did find "moderate" restrictions) was inconsistent with that of the treating and examining physicians. Yet, the ALJ afforded "great weight" to the opinions of both Dr. Schiller and Dr. Tavoularis without attempting to explain or reconcile those inconsistencies. --------
The ALJ appeared to discount the undisputed evidence regarding Ritz' panic attacks, hypervigilance and stress when required to leave her home because Ritz was able to perform many activities of daily living within the home and because Ritz was able to drive 25 miles to a consultative examination (in a car, alone). The ALJ did not explain why these activities are indicative of her ability to succeed in a work setting outside the home, such as a mail room, office or factory. This case must, therefore, be remanded so that the ALJ may address the medical and expert opinion evidence regarding the extent of Plaintiff's ability to succeed in a work setting.
As the Seventh Circuit Court of Appeals has observed, "even a moderate limitation on responding appropriately to supervisors may undermine seriously a claimant's ability to work." O'Connor-Spinner v. Astrue, 627 F.3d 614, 621 (7th Cir. 2010) (citations omiited). Here, the ALJ gave "great weight" to the opinion of Dr. Tavoularis that Ritz has "marked" limitations in her ability to respond appropriately in a work setting. The ALJ failed to explain why he did not fully incorporate this assessment of Plaintiff's difficulties into the MRFC and VE hypothetical.
Of course, the ALJ could have adopted some of Dr. Tavoularis' opinions and rejected others. Cf. S.S.R. 96-5p, 1996 WL 374183, at *4 (July 2, 1996) ("Adjudicators must remember, however, that medical source statements may actually comprise separate medical opinions regarding diverse physical and mental functions, such as walking, lifting, seeing, and remembering instructions, and that it may be necessary to decide whether to adopt or not adopt each one."). Before doing so, however, the ALJ was required to explain why the specific opinion regarding Plaintiff's marked inability to deal with normal work stress was not adopted. See S.S.R. 96-8p, 1996 WL 374184, at at *7 (July 2, 1996) ("If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted."). Because the ALJ failed to do so, the Court cannot discern whether he rejected this opinion for "no reason or the wrong reason." Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999); see also Lodwick v. Astrue, No. 10-1394-SAC, 2011 WL 6253799, at *5 (D. Kan. Dec.13, 2011) (remanding case where ALJ asserted that he gave "substantial weight" to medical source's opinions, yet, without explanation, failed to include some of the limitations contained in the source's report in his RFC). In sum, the ALJ's error in assessing Plaintiff's MRFC and, in turn, posing potentially incomplete hypotheticals to the VE is sufficient to warrant a remand.
IV. Conclusion
The ALJ failed to provide sufficient support for his conclusion that Plaintiff is not disabled within the meaning of the Social Security Act. However, the record is not sufficiently developed to demonstrate that Plaintiff is, in fact, disabled. As the government points out, Ritz can perform many activities of daily living, has a high school diploma, displays average intelligence, logical and coherent thought processes, and has no difficulty understanding and carrying out instructions. Accordingly, this matter must be remanded for further consideration in accordance with this Memorandum Opinion. In accordance with the foregoing, the Court will GRANT the Motion for Summary Judgment filed by Plaintiff and DENY the Motion for Summary judgment filed by the Acting Commissioner. An appropriate Order follows.
McVerry, S.J. ORDER
AND NOW, this 2nd day of February, 2016, in accordance with the foregoing Memorandum Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that the Acting Commissioner's MOTION FOR SUMMARY JUDGMENT (ECF No. 9) is DENIED, Plaintiff's MOTION FOR SUMMARY JUDGMENT (ECF No. 11) is GRANTED, and the case is hereby REMANDED to the ALJ for further consideration.
BY THE COURT:
s/ Terrence F. McVerry
Senior United States District Judge cc: Robert W. Gillikin , II
Email: rgillikin@ruttermills.com
Colin Callahan
Email: colin.callahan@usdoj.gov