Opinion
No. 03-4638.
October 20, 2004
MEMORANDUM
Presently before the Court are the parties' cross-motions for summary judgment, a Joint Statement of Undisputed Facts, and Plaintiff's Objections to some of the ALJ's Findings. The United States Magistrate Judge to whom this matter had been referred filed a Report and Recommendation (the "Report") recommending that this Court grant Defendant's motion for summary judgment and deny Plaintiff's motion for summary judgment. After argument was held in this matter on September 8, 2004 and upon careful and independent consideration of the Report, Plaintiff's timely filed Objections to the Report, and the argument presented at the hearing, for the reasons set forth below, I will approve and adopt the Report and Recommendation.
A district court judge may refer an appeal of a decision of the Commissioner to a magistrate judge. See 28 U.S.C. § 636(b)(1). Within ten days after being served a copy of the magistrate judge's report and recommendation, a party may file timely and specific objections thereto. See 28 U.S.C. § 636(b)(1)(C). The district court judge will then make a de novo determination of those portions of the report and recommendation to which objection is made. See id. The district court judge may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate judge, receive further evidence, or recommit the matter to the magistrate judge with instructions. See id. In reviewing the Commissioner's decision, the district court is bound by the ALJ's findings of fact if they are supported by substantial evidence in the record. See 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Moreover, it is the ALJ's responsibility to resolve conflicts in evidence and to determine the credibility and weight to be afforded to the evidence. Id., 186 F.3d at 429. The ALJ's conclusions and determinations must be accepted unless there is no basis for them in the record. Torres v. Harris, 494 F.Supp. 297, 301, aff'd 659 F.2d 1071 (3d Cir. 1981).
Discussion
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Plaintiff timely filed three Objections to the Magistrate Judge's Report and Recommendation.
A. The ALJ's purported failure to weigh the testimony provided by Plaintiff's daughter.
Plaintiff first objects that the ALJ failed to explain the weight he assigned to Plaintiff's daughter's testimony. Plaintiff concludes that such failure is reversible legal error and cites several cases in support of this proposition. Plaintiff has misinterpreted the holdings in the cited cases. None of the case support the conclusion that the ALJ must explain the weight assigned to a witnesses testimony. They instead can be summarized to conclude that the ALJ must consider all objective medical evidence and explain his conciliations and rejections thereof.See Burnett, at 220 F.3d 122. The Burnett case also holds that the ALJ must explain the rejection of non-medical witness testimony. Id. In the instant matter, the ALJ did not reject the testimony given by Plaintiff's daughter. See Record at 20. Instead, the ALJ notes that the testimony of Plaintiff's daughter in fact supported some of Plaintiff's claims about her neighbors, but he was not persuaded as to her medical conclusions. Id. Clearly the ALJ considered the testimony of Plaintiff's daughter and credited it, in part, as supporting some of Plaintiff's testimony. In setting forth his analysis of the testimony he sufficiently complied with the authorities cited by Plaintiff.
B. The ALJ ignored the report of Dr. Zinsenheim.
In this Objection Plaintiff argues that the Social Security Appeals Council issued a remand order directing the ALJ to further develop the record regarding Plaintiff's mental impairment. Plaintiff argues that because the ALJ never mentions Dr. Zinsenheim's report in his decision on remand, the ALJ and Magistrate Judge committed legal error. Although the ALJ's decision does not specifically reference Dr. Zinsenheim's report, her report — while suggesting that Plaintiff's sleep disorder may have derived from a neuropsychiatric disorder — stated that Plaintiff's insight and judgment appeared sound and intact. Moreover, in her report Dr. Zinsenheim did not make a diagnosis; rather she recommended further neuropsychological testing, the ruling out of some psychiatric disorders, and a referral for treatment of depression. Pursuant to the Appeals Council's direction and subsequent to Dr. Zinsenheim's report, the record was further developed regarding Plaintiff's mental impairment. Those subsequent evaluations and assessments concluded that Plaintiff had depressive disorder, with mild psychotic features and also that her Global Assessment Functioning score indicated moderate impairment of social or occupational functioning. See Record at 440, 462. Therefore, the court concludes that the ALJ's determination that although Plaintiff suffered from some psychiatric impediments but is not disabled, is supported by substantial evidence in the record.
C. The ALJ erred in his consideration of whether Plaintiff's impairments meet or equal the Listing of Impairments.
In her third and final Objection Plaintiff argues that: (1) the ALJ failed to consider crucial medical evidence from treating physicians which purportedly support a finding of Listings-level severity of Plaintiff's mental impairment; (2) The ALJ mischaracterized the report of a consultative examiner; (3) the ALJ failed to obtain testimony from a medical expert regarding the issue of Plaintiff's mental impairments being equivalent to a Listed impairment; and (4) the ALJ's discussion of the Listing 12.03(c) only included the conclusion that Plaintiff's impairments did not meet the "C" criteria of the listing — a conclusion Plaintiff claims is not supported by her employment and medical history. Contrary to Plaintiff's assertions, the ALJ directly considered the reports of Drs. Baumel and Aguiala-Seara and made reference to them in his decision. See Record at 18, and 431-32. Plaintiff also contends that the ALJ mischaracterized the report of Dr. Slap. Contrary to Plaintiff's assertions, Dr. Slap's report does not require a finding of disability. Rather, in his reports, Dr. Slap concludes — two times — that Plaintiff's disability should not be determined as a result of her mental impairment, but rather the basis for the determination of disability, if any, should be her physical ailments. See Record at 264, and 440. Specifically, Dr. Slap stated (in 1987) that:
There is really nothing wrong with her mental condition aside from problems with memory which is secondary to her depression . . . If the patient were significantly stressed beyond what she is, she would just become further withdrawn and more depressed. I do not believe that she would be compensated to a psychosis.
Record at 263, 264. He later reiterated a similar opinion. His 2001 report concluded that
The patient's reasons for not being able to work are pretty much medical. They are the allergy problems and the arthritis. She is having trouble with her sleep. However, at this point, it may be that her mental health is such that she would not be able to work independent of these medical problems. Her sleep is very disturbed. Her ability to go to work on a regular basis might be difficult. She has developed a certain mild paranoia. She mistrusts people. However, since her mental state is largely in reaction to the stressors of her medical condition, I would say that the determination of disability should hinge on her medical problems.
Record at 439, 440. The court concludes that the ALJ's determination that Plaintiff's mental impairment does not support a disability determination is supported by substantial evidence in the record.
Plaintiff also argues that the ALJ failed to obtain testimony from a medical expert as Plaintiff alleges is required by Social Security policy. Upon review of the policy, Social Security Rule 96-6p, the Court concludes that the policy does not require a medical expert to be consulted on the issue of equivalence to the Listings. Plaintiff next objects to the Report asserting that the ALJ's discussion of the Listing 12.03(c) only included the conclusion that Plaintiff's impairments did not meet the "C" criteria of the listing. As discussed above, the ALJ's finding that Plaintiff's mental impairments do not support determination of disability is supported by substantial evidence in the record.
Plaintiff's final objection is that the ALJ's hypothetical questions to the Vocational Examiner did not fully encompass her deficiencies in concentration, persistence, pace or social functioning. The court first notes that the ALJ did pose a hypothetical to the VE regarding Plaintiff's limited social functioning. See Record at 107, 117. Following a question posed by Plaintiff's counsel regarding Plaintiff's difficulty to concentrate, the ALJ also inquired as to Plaintiff's ability to work due to concentration problems. See Record at 118, Plaintiff's objection on these ground therefore will be overruled. Id. at 24.
ORDER
AND NOW, this ____ day of October 2004, upon consideration of the parties' cross-motions for summary judgment, a Joint Statement of Undisputed Facts, the Report and Recommendation filed by United States Magistrate Judge M. Faith Angell, Plaintiff's Objections to some of the ALJ's Findings, and argument presented at the hearing held on September 8, 2004, IT IS HEREBY ORDERED that:A. Plaintiff's Objections are OVERRULED;
B. The Report and Recommendation, is APPROVED and ADOPTED;
C. Defendant's motion for summary judgment is GRANTED;
D. Plaintiff's motion for summary judgment is DENIED;
E. The Clerk of the Court shall mark this case closed.