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May 31, 2001


The opinion of the court was delivered by: Melinson, Chief United States Magistrate Judge.


This action was brought pursuant to 42 U.S.C. § 1383 (c)(3), which incorporates 42 U.S.C. § 405 (g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"), who denied the application of Sofya Rotshteyn for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1381-1383f. Presently before this Court are the parties' cross-motions for summary judgment. For the reasons set forth below, Plaintiffs motion for summary judgment is DENIED, and Defendant's motion for summary judgment is GRANTED.


Rotshteyn filed an application for SSI on June 19, 1997, alleging a disability due to migraines and severe allergic reactions to medications. (Tr. 73, 89-91). This application was denied initially and upon reconsideration. (Tr. 57). On November 25, 1998, a hearing was held before an Administrative Law Judge ("ALJ"). The ALJ received testimony through a Russian interpreter from Rotshteyn, who was represented by counsel. (Tr. 34-54). A vocational expert ("VE"), Jeannine Salek, also testified.

The ALJ denied Rotshteyn's claim for benefits in his decision dated March 9, 1999. (Tr. 12-25). Rotshteyn timely requested review the Appeals Council, which was denied. (Tr. 4-5). Therefore, the ALJ's decision became the final decision of the Commissioner. Having exhausted her administrative remedies, Rotshteyn filed a complaint with this court seeking judicial review of the Commissioner's final decision denying benefits. On March 30, 2001, pursuant to F.R.C.P. 73, the parties consented to this court's exercise of authority under 28 U.S.C. § 636 (c) to conduct all proceedings. Hence, this court's decision is a final order in this matter.

The relevant facts are undisputed. Rotshteyn was fifty-seven (57) years old*fn2 at the time of her administrative hearing. She cannot speak English, but graduated from high school in the former Soviet Union in 1959 and had one year of schooling as a practical nurse. She is married and lives with her husband, who works parttime. Rotshteyn receives public assistance in the form of Medicaid. Rotshteyn worked as a nurse's aide*fn3 in the Soviet Union until November 26, 1982, when she quit her job due to allergic reactions. She came to the United States as a refugee under the Immigration and Naturalization Act on October 17, 1996.

Prior to arriving in the United States, Rotshteyn was treated sporadically from 1972 to 1992 for various medical conditions such as chronic infectious allergic encephalitis, chronic cholecystosis pancreatitis, chronic gastritis, drug allergies, and acute chronic lumbosacral radiculitis.

After arriving in the United States. Rotshteyn treated with Galina Uklonsky, M.D. from November 4, 1996 to September 18, 1997 for tension headaches and depression. Dr. Uklonsky opined that Rotshteyn suffered from a severe emotional disorder related to her prior medical history. She referred Rotshteyn to an allergist and neurologist. Rotshteyn's examinations with these physicians on March 19, 1997 and August 25, 1997 revealed essentially normal physical results. Rotshteyn's neurologist, Mark Faynberg, M.D., concluded that Rotshteyn's complaints of headaches were related to her depression, and he recommended that she see a psychiatrist. From September 1997 to October 1998, Rotshteyn saw various psychiatrists, including Dr. Duvall, associated with a psychiatric clinic, PATH, Inc. (People Acting to Help). Rotshteyn was diagnosed with major depression but improved under psychiatric care and medications.

Rotshteyn was examined, at the Commissioner's request, by Dr. Phillip A. Lipson, D.O. in September of 1997. On November 3, 1997, again at the Commissioner s request, Rotshteyn was evaluated by psychiatrist, Boris Klyashtorny, M.D. Physicians for the State agency, Fred Myers, M.D. and Sharon Wander, M.D., reviewed Rotshteyn's medical records in December 1997 and April 1998. In December 1997, April 1998, and July 1998, three psychologists for the State agency reviewed Rotshteyn's records. While Dr. Lipson found Rotshteyn severely functionally limited, the remaining State physicians, psychologists, and psychiatrist found Rotshteyn only slightly to moderately limited in her daily functioning.


The role of this court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner's final decision. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Jones v. Sullivan, 954 F.2d 125, 127-28 (3d Cir. 1991). The factual findings of the Commissioner must be accepted as conclusive, provided that they are supported by substantial evidence. Morales v. Apfel, 225 F.3d 310, 316 (2000) (citing 42 U.S.C. § 405 (g)). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999)). See also Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979).

The Social Security Administration has adopted a system of sequential analysis for the evaluation of disability claims for SSI. This five-step evaluation is codified at 20 C.F.R. § 416.920.*fn4 The Act provides that a claimant is disabled if 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 twelve months." 20 C.F.R. § 416.905. In pursuing a disability claim under the Act, the burden is solely upon the claimant to prove the existence of a disability. 42 U.S.C. § 423 (d)(5). See Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). The claimant must provide the medical evidence which indicates that there is an impairment and the extent of its severity. 42 U.S.C. § 423 (d)(5). Other factors which the Commissioner must consider in determining whether a claimant is disabled within the meaning of the Act are: (1) medical data and findings; (2) expert medical opinions; (3) subjective complaints; and (4) the claimant's age, educational background, and work history. Hammerstone v. Heckler, 635 F. Supp. 1089, 1092 (E.D.Pa. 1986) (citing Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972)). The claimant satisfies her burden by showing an inability to return to her past relevant work. Doak, 790 F.2d at 28, Rossi v. Califano, 602 F.2d 55, 57 (3 (1 Cir. 1979) (citing Baker v. Gardner, 362 F.2d 864 (3d Cir. 1966)). Once this showing is made, the burden of proof shifts to the Commissioner to show that the claimant, given her age, education, and work experience, has the ability to perform specific jobs that exist in the economy. 20 C.F.R. § 416.920. See Rossi, 602 F.2d at 57.

In this case, the ALJ determined that Rotshteyn had not engaged in substantial gainful activity since her alleged onset date of June 19, 1997. The ALJ further determined that, while Rotshteyn's depression was a severe mental impairment, her condition did not meet or equal the criteria of a listed impairment. 20 C.F.R. Pt. 404, Subpt. P, App. I, § 12.00. The ALJ also found that Rotshteyn's headaches and hypertension were not severe impairments. He concluded that Rotshteyn had no exertional limitations but had significant non-exertional limitations in that she does not speak English, is unable to understand, remember, and carry out complex, detailed instructions, and cannot tolerate high levels of job stress. The ALJ further concluded that Rotshteyn could not perform her past relevant work as a nurse's aide, but she could perform a limited range of heavy work which exists in significant numbers of jobs in the national economy.

Rotshteyn raises ten points of error allegedly committed by the ALJ. Those points can be fairly summarized as follows: the ALJ erred in 1) not fully developing the record concerning Rotshteyn's mental impairment; 2) not fully crediting Rotshteyn's subjective complaints of pain, discomfort, and fatigue; 3) not fully crediting Plaintiffs treating physician's reports or the non-examining physician's opinion which found Rotshteyn unable to perform substantial gainful activity; 4) finding that Rotshteyn had the residual functional capacity to return to substantial gainful activity, including past relevant work; and 5) relying upon the testimony of the VE which was not consistent with the hypothetical posed by Rotshteyn's attorney. The Commissioner argues that substantial evidence exists to support the ALJ's finding that Rotshteyn could perform substantial gainful activity in the form of a limited range of heavy work.

First, Rotshteyn contends that the ALJ failed to fully develop the record concerning her alleged mental impairment. This court disagrees. Generally, hearings to determine whether an applicant is entitled to supplemental security income are not adversary proceedings. See Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). It is incumbent upon the Social Security Administration to provide assistance to the claimant in developing the record. Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979). However, the claimant bears the initial burden of proving the existence of a medically determinable condition which is expected to continuously last for not less than twelve months. See Kent, 710 F.2d at 114; 20 C.F.R. § 416.905.

In the instant case, Rotshteyn does not specifically cite to what information should have been obtained to supplement the record concerning her mental impairments. She did not submit any supplemental records regarding her mental impairment along with any petition or appeal she has filed in this matter, including the motion pending before this Court. Moreover, the Commissioner requested several examinations and record reviews by state agency physicians and consultants: on November 3, 1997, a Russian-speaking psychiatrist, Dr. Klyashtorny performed a psychiatric evaluation of Rotshteyn (Tr. 161-164) and in December 1997, April 1998, and July 1998, three psychologists, Ralph Davis, Ph. D., Paul Lanuniziata, Ph.D., and Pamela Tucker, Ph.D., reviewed Rotshteyn's psychological records. The ALJ also considered evidence of diagnostic testing and the reports of Rotshteyn's treating physicians. (Tr. 18-20).

In his decision, the ALJ reviewed the above evidence and accurately recorded the findings of the various physicians and psychologists. The ALJ acknowledged that, based upon the medical findings, Rotshteyn's depression imposes "significant vocational limitations" which were severe but not disabling. (Tr. 18). Specifically, the State agency psychologists each found that Rotshteyn suffered from a nonsevere mental impairment that only slightly effected daily living and social functioning and seldom effected concentration. No episodes of decompensation were found. (Tr. 19). The ALJ also noted that Dr. Klyashtorny found Rotshteyn to be awake, alert, and cooperative, but sad. He found no psychomotor abnormalities and noted that her affect was appropriate to her stream of thought. He found her to be oriented in all three spheres with memory intact, fairly good insight and fair judgement. Id. However, Dr. Klyashtorny noted that Rotshteyn denies being able to perform daily activities, denies being interested in group activities, and has compromised concentration due to her medical problems. For reasons discussed below, the ALJ rejected Dr. Klyashtorny's assessment of Rotshteyn abilities in the spheres of her daily activities, social functioning, and concentration noting that the doctor's finding of limitations in these spheres is "as much the result of cultural adjustment difficulties and language barrier as they are the result of her mental impairment." (Tr. 20).

The ALJ concluded that Rotshteyn's daily living activities are only moderately limited due to her mental impairment and that her social functioning is only slightly limited. The ALJ found that there was no evidence of marital difficulties and that, in fact, Rotshteyn has supportive relatives, such as her sister, who help her. The ALJ found that Rotshteyn has friends and can initiate social contact. Id. The ALJ further noted that Rotshteyn's psychiatrists at PATH did not find any significant, ongoing problems in concentration. Id. The ALJ completed a Psychiatric Review Technique Form incorporating the above findings and determining that Rotshteyn had an affective disorder which only moderately affected her daily living activities, slightly affected her social functioning, and seldom affected her ability to complete tasks in a timely manner. (Tr. 26-29). Clearly, the ALJ in the instant case properly followed the procedures set forth in the regulations governing the determination of ...

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