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COLAVITO v. APFEL

October 21, 1999

DONNA L. COLAVITO
v.
KENNETH S. APFEL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION.



The opinion of the court was delivered by: Bechtle, District Judge.

MEMORANDUM AND ORDER

Presently before the court are plaintiff Donna L. Colavito's ("Plaintiff") Objections to the Magistrate Judge's Report and Recommendation. For the reasons set forth below, the court will approve and adopt the Report and Recommendation.

I. BACKGROUND

This is a judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's claim for supplemental security income ("SSI") under Title XVI of the Social Security Act.

Plaintiff was born on October 20, 1948 and was forty-eight years old at the time of the hearing before the Administrative Law Judge on June 27, 1996. (R. at 35 & 40.) Plaintiff's education terminated in the tenth grade. (R. at 40-41.) Plaintiff testified that she attended special education classes and that she had not worked in the fifteen years prior to the hearing.*fn1 (R. at 40-42.)

II. LEGAL STANDARD

III. DISCUSSION

To receive disability insurance benefits, a claimant must show that he or she is unable to:

  engage in 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 12 months. . . .
  [The impairment must be so severe that the claimant]
  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)(1)(A) & (d)(2)(A).

An ALJ considering a claim for disability insurance benefits undertakes the five-step sequential evaluation of disability claims set forth in 20 C.F.R. § 404.1520. Under Step One, if the claimant is working and the work constitutes substantial gainful activity, the ALJ must find that the claimant is not disabled regardless of medical condition, age, education or work experience. 20 C.F.R. § 404.1520(b). Under Step Two, the ALJ determines whether the claimant has a severe impairment which significantly limits his or her physical or mental ability to do basic work activity. 20 C.F.R. § 404.1520(c). Under Step Three, the ALJ must determine whether the claimant's impairment meets or equals the criteria for a listed impairment as set forth in 20 C.F.R. pt. 404, subpt. 4, Appendix 1. 20 C.F.R. § 404.1520(d). Under Step Four, if the ALJ finds that the claimant retains the residual functional capacity to perform past relevant work, the claimant will not be found to be disabled. 20 C.F.R. § 404.1520(e). Under Step Five, other factors, including the claimant's residual functional capacity, age, education and past work experience must be considered to determine if the claimant can perform other work in the national economy. 20 C.F.R. § 404.1520(f).

Plaintiff asserts two principal grounds on which the Magistrate Judge's and the ALJ's findings are not supported by substantial evidence. First, Plaintiff asserts that the Magistrate Judge improperly rejected the medical opinions of Dr. Misook Soh, M.D., Plaintiff's treating psychiatrist. Second, Plaintiff argues that the VE's hypothetical did not include all of her impairments. The court will review each argument separately.

A. Dr. Soh's Opinion

Plaintiff's principal objection revolves around evidence of the purported findings of a person identified as Dr. Misook Soh, M.D., and claimed by Plaintiff to be one of her treating physicians. Dr. Soh did not testify at the hearing.

Documents claimed by Plaintiff's counsel at the hearing to be the reports of Dr. Soh were submitted in support of Plaintiff's claim. (R. at 155, 216 & 233.) The ALJ was skeptical about the genuineness of certain of the reports that were submitted, and her observations in that regard are set forth in her decision.*fn4 (R. at 21-22.) In addition to her concerns regarding the authenticity of the reports, the ALJ was not satisfied with the content of the documents because some were essentially "check off" forms filled in by someone that may, or may not have been, Dr. Soh. (R. at 216.) Some of Plaintiff's records were filled in by her social worker, Virginia W. Dryer, and signed off by Dr. Soh. (R. at 151, 186-192 & 219-224.) Under the regulations, a social worker's opinion is not listed as an "acceptable medical source." See 20 C.F.R. § 416.913(a) (listing acceptable medical sources); Lee v. Sullivan 945 F.2d 687, 691 (4th Cir. 1991) (finding that chiropractor is not "acceptable medical source" under 20 C.F.R. § 416.913(a), and therefore is not qualified to make medical assessment).

The ALJ provided Plaintiff's counsel at the hearing with an opportunity to supplement Plaintiff's deficient medical records with the original medical and laboratory notes. (R. at 22 fn.1 & 55.) Such treatment records are customarily expected and are provided to support cursory forms that often do little more than inform the reader of pre-printed terms of a medical diagnosis. Cf. 20 C.F.R. § 404.1527(d)(2) (stating that to receive controlling weight, treating source's opinion must be "well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence"); § 416.927(d)(2) (same); Santise vs. Schweiker, 676 F.2d 925, 932-933 (3d Cir. 1982) (recognizing authority of Secretary of Health and Human Services to "establish regulations governing determinations of disability" and "adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits") (internal quotations omitted); Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (finding that forms requiring physician only to check boxes or fill in blanks are "weak evidence at best" and that when such forms are unaccompanied by thorough written reports, "their reliability is suspect") (internal quotations omitted). Plaintiff's counsel at the hearing accepted the ALJ's offer to supply Plaintiff's medical records, but failed to do so. Substitute counsel, who is Plaintiff's current counsel before the court and represented Plaintiff before the Appeals Council, also failed to supply the requested documentation. Indeed, even throughout the proceedings in this court, the material has not been provided. The court agrees with the United States Magistrate Judge that the ALJ, as well as the Appeals Council, were wholly justified in not giving the weight to Plaintiff's medical documents that Plaintiff believes they deserve. See Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990) (recognizing that court may accept credibility findings of ALJ).

Plaintiff also objects on the ground that the record was not fully developed as is required when benefits are denied. The Federal Regulations provide that before a determination is made that a claimant is not disabled, the Commissioner should insure that the claimant's complete medical history has been developed. 20 C.F.R. § 416.912(d). Those regulations provide that the complete medical history are records of the claimant's medical sources for the 12 months or more preceding the month in which the claimant's application is filed. Id. If the evidence before the Commissioner is insufficient, he is to attempt to secure additional evidence to determine whether a claimant is disabled. 20 C.F.R. § 416.927(c)(3). The Commissioner is to request additional records, recontact treating sources, ask the claimant for more information or undergo a consultive examination. Id. Plaintiff's counsel contends that the ALJ failed to complete the record as required by the Federal Regulations. See 20 C.F.R. § 404.1512(e)(1) & (f) (stating that "[w]e will seek additional evidence or clarification from your medical source when the report from your medical source . . . does not contain all the necessary information" and that "every reasonable effort" will be made to obtain evidence from medical sources). However, it is plain that the ALJ did all that she could to have the record completed and that it was Plaintiff who failed to furnish the necessary information. The opportunity that the ALJ furnished Plaintiff's counsel to strengthen the credibility of Plaintiff's case was not a failure of the tribunal to complete the record.

A review of the record in this case demonstrates that the record was sufficiently clear and complete for the ALJ to render a decision regarding Plaintiff's disability. The ALJ went to considerable trouble to assure that a complete record was before her. (Rep. & Recomm. at 19 n. 21 (observing that ALJ left record open for two weeks after administrative hearing to give Plaintiff extra time to submit treatment notes).) Further, the ALJ sent Plaintiff for three consultive medical status examinations in accordance with the regulations. (R. at 19-21.) The examinations covered a span of two years, and coupled with the other information before the ALJ, furnished more than sufficient information for the ALJ to decide the claim. Thus, Plaintiff's objection on this ground is without merit.

B. The ALJ's Hypothetical

Plaintiff also objects that the content of the hypothetical question presented at the hearing was incorrect. The court has examined the record and concludes that based upon the entire record before the ALJ, the hypothetical question presented to the VE was well within the acceptable range for such questions. See Podedworny v. Harris 745 F.2d 210, 218 (3d Cir. 1984) (noting that ALJ will tailor hypothetical to simulate plaintiff's limitations and abilities, and ask whether suitable job exists for plaintiff in national economy). Testimony of a VE constitutes substantial evidence for purposes of judicial review where a hypothetical question considers all of a claimant's impairments that are supported by the medical record. See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (stating that "[a] hypothetical question must reflect all of a claimant's impairments that are supported by the record; otherwise the question is deficient and the expert's answer to it cannot be considered substantial evidence"). Hypothetical questions need only include the factors that are supported by objective medical evidence contained in the record. Id. at 1271. It is not necessary for the ALJ to include facts that are supported by a claimant's subjective testimony only. Id.

In this case, the hypothetical question demonstrates that the ALJ took into consideration the credible factors in the record that were necessary for the VE to render an opinion. (R. at 57-63.) The reference in that opinion and in the ALJ's findings relating to light or middle exertional limitations, as well as facts in evidence concerning Plaintiff and a description of the various vocational opportunities available in the national and regional economy, make it clear that the hypothetical question was in accordance with the necessary legal standard. Thus, Plaintiff's objection on this ground is without merit.

IV. CONCLUSION

Based upon the foregoing reasons, the Magistrate Judge's Report and Recommendation shall be approved and adopted.

An appropriate Order follows.

ORDER

AND NOW, TO WIT, this day of October, 1999, upon consideration of plaintiff Donna L. Colavito's and defendant Kenneth S. Apfel, Commissioner of the Social Security Administration's cross-motions for summary judgment, and after careful review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi and the Objections thereto, IT IS ORDERED that:

  1. the Report and Recommendation is APPROVED and
    ADOPTED;
  2. plaintiff Donna L. Colavito's motion for summary
    judgment is DENIED; and
  3. defendant Kenneth S. Apfel, Commissioner of the
    Social Security Administration's motion for summary
    judgment is GRANTED. Judgment is entered in favor
    of defendant Kenneth S. Apfel, Commissioner of the
    Social Security ...

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