The opinion of the court was delivered by: Bechtle, District Judge.
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.
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.)
Plaintiff asserted that she suffers from depression, heart
palpitations and back conditions including arthritis and
degenerative disc disease.*fn2 (R. at 44.) On September
19, 1994, Plaintiff filed for SSI, alleging a disability that
began on May 18, 1989. (R. at 17-18, 68 & 114) This claim was
denied initially and again upon reconsideration. On June 27,
1996, Plaintiff testified at a hearing before Administrative Law
Judge Hazel C. Strauss (the "ALJ"). A vocational expert ("VE")
also testified at Plaintiff's hearing. (R. at 56-62.) On
September 19, 1997, the ALJ found that Plaintiff had not been
under a disability as defined by the Social Security Act at any
time through the date of the decision. (R. at 27.) In her
decision denying Plaintiff benefits, the ALJ found that Plaintiff
could perform simple one-to-two step jobs that are low stress and
do not deal with the public, including: janitress and hotel maid
or packer at the light and medium exertional levels.*fn3 (R. at
26-27.) On July 27, 1999, United States Magistrate Judge Peter B.
Scuderi ("Magistrate Judge") issued a Report and Recommendation
finding that substantial evidence existed to support the ALJ's
findings. On August 9, 1999, Plaintiff filed Objections to the
Magistrate Judge's Report and Recommendation.
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.
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).
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.
Based upon the foregoing reasons, the Magistrate Judge's Report
and Recommendation shall be approved and adopted.
An appropriate Order follows.
1. the Report and Recommendation is APPROVED and
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 ...