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.
PROCEDURAL AND FACTUAL HISTORY
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
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
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
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).