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July 14, 2004.

JO ANNE B. BARNHART, Commissioner of Social Security.

The opinion of the court was delivered by: JOHN PADOVA, District Judge



Plaintiff Ortan M. Lewis filed this action pursuant to 42 U.S.C.A. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security Jo Anne B. Barnhart ("Commissioner"), denying her claim for supplemental security income benefits ("SSI") pursuant to Title XVI of the Social Security Act, 42 U.S.C.A. §§ 1381-1383. Both parties filed motions for summary judgment. Pursuant to Local Rule 72.1(d)(1)(C), the Court referred the case to Magistrate Judge Peter B. Scuderi for a Report and Recommendation. The Magistrate Judge has recommended that Plaintiff's Motion for Summary Judgment be denied and the Commissioner's Motion for Summary Judgment be granted. Plaintiff filed timely objections. For the reasons that follow, the Court sustains Plaintiff's objections and remands this matter to the Commissioner for reconsideration and further findings. Plaintiff's Motion for Summary Judgment is granted and Defendant's Motion for Summary Judgment is denied. II. STANDARD OF REVIEW

  Under the Social Security Act, 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 . . . last for a continuous period of not less than twelve (12) months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 416.905(a). Under the medical-vocational regulations, as promulgated by the Commissioner, the Commissioner uses a five-step sequential evaluation to evaluate disability claims.*fn1 The burden to prove the existence of a disability rests initially upon the claimant. 42 U.S.C. § 423(d)(5). To satisfy this burden, the claimant must show an inability to return to her former work. Once the claimant makes this showing, the burden of proof then 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. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979).

  There is an additional process for evaluating mental impairments. Plummer v. Apfel, 186 F.3d 422, 428-29 (3d Cir. 1999). These procedures require the ALJ to evaluate the claimant's "pertinent symptoms, signs, and laboratory findings to determine whether [the claimant has] a medically determinable mental impairment(s)." 20 C.F.R. § 416.920a(b)(1). If an impairment is found, the ALJ must rate the functional limitation resulting from such impairment based upon "the extent to which [claimant's] impairment(s) interferes with [his or her] ability to function independently, appropriately, effectively, and on a sustained basis" in the following four areas: "Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation." 20 C.F.R. § 416.920a(c)(2)-(3). If the claimant's mental impairment is severe, the ALJ then determines whether it "meets or is equivalent in severity to a listed mental disorder." 20 C.F.R. § 416.920a(d)(2). If the claimant's impairment is severe, but does not reach the level of a listed mental disorder, the ALJ then assess the claimant's residual functional capacity. 20 C.F.R. § 416.920a(d)(3).

  Judicial review of the Commissioner's final decision is limited, and this Court is bound by the factual findings of the Commissioner if they are supported by substantial evidence and decided according to correct legal standards. Allen v. Brown, 881 F.2d 37, 39 (3d Cir. 1989); Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984). "Substantial evidence" is deemed to be such relevant evidence as a reasonable mind might accept as adequate to support a decision. Richardson v. Perales, 402 U.S. 389, 407 (1971); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Substantial evidence is more than a mere scintilla, but may be somewhat less than a preponderance. Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979).

  Despite the deference to administrative decisions implied by this standard, this Court retains the responsibility to scrutinize the entire record and to reverse or remand if the Commissioner's decision is not supported by substantial evidence. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). Substantial evidence can only be considered as supporting evidence in relationship to all other evidence in the record. Kent v. Schweiker, 701 F.2d 110, 114 (3d Cir. 1983).


  Lewis applied for SSI benefits on December 11, 2001, alleging a disability that began on July 26, 2001. (Tr. at 42.) She claimed to be disabled by the loss of her left eye, which was surgically removed and replaced with a prosthetic eye on August 2, 2001, after Lewis was stabbed in the eye with a knife. (Tr. at 55, 88-96.) She also suffers from asthma, hypertension and obesity and complains of pain in the area of her left eye that interferes with her ability to see, think and read. (Tr. at 76-77, 94-96.) She also claims to suffer from depression and has obtained counseling from the Crime Victim Center and her pastor. (Tr. at 115-16, 135-38, 147-48.) At the time of the administrative hearing, Lewis was twenty-seven years old, five feet, nine inches tall, and weighed 280 pounds. (Tr. at 119-120). Lewis did not graduate from high school, leaving special education classes provided by the Chester County Intermediate Unit after the tenth grade. (Tr. at 61, 121.) She had two short term employment experiences prior to applying for supplemental security income. She worked part-time cleaning a Wendy's restaurant for four months in 1993-94, before leaving because of problems in school. (Tr. at 122-23.) She worked at a Veteran's Administration Hospital for two months in 1994-95 as a nursing aid, leaving after her mother died. (Tr. at 123-24.) That position also involved cleaning. (Tr. at 123.)

  Plaintiff's application for SSI benefits was denied on April 12, 2002. (Tr. at 11, 20.) A hearing was held before Administrative Law Judge ("ALJ") Diane C. Moskal on December 9, 2002. (Tr. at 112.) Lewis and her grandmother, Mary Wright, both appeared and testified on Lewis's behalf at the hearing. (Tr. at 112.) A vocational expert, Dennis L. Mohn, also appeared and testified. (Tr. at 112.)

  On February 7, 2003, the ALJ issued a decision denying Plaintiff's applications for benefits. (Tr. at 11-16.) The ALJ found that Lewis "has residuals of monocular vision, asthma, and hypertension, which conditions . . . are . . . severe." (Tr. at 15.) The ALJ further found that Lewis "has not demonstrated, either singly or in combination, impairment which meets or equals the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4." (Tr. at 15.) The ALJ rejected statements made by Lewis and Wright concerning Lewis' impairments and their impact on her ability to work to the extent they allege a level of impairment that exceeds what would be expected from the objective medical evidence. (Tr. at 15.) The ALJ also found that Lewis: "has the residual functional capacity to perform a limited range of light work;" "has no past relevant work;" has a limited education; and "would be capable of making a vocational adjustment to numerous jobs," significant numbers of which exist in the regional and national economy. (Tr. at 15-16.) The ALJ concluded that Lewis was not disabled. (Tr. at 16.) The Appeals Council denied Plaintiff's request for review; therefore, the ALJ's decision dated February 3, 2003, is the final decision of the Commissioner. See 20 C.F.R. § 404.1584(d), 416.984(d). Plaintiff then filed this action.

  Plaintiff, both in her motion for summary judgment and in her objections to the Magistrate Judge's Report and Recommendation, argues that the ALJ erred by failing to fully and fairly develop the record by failing to obtain consultative examinations to evaluate her claim of depression; by failing to consider her obesity; and by improperly rejecting Lewis's and Wright's testimony regarding Lewis's depression.

  A. Consultative Examination

  The ALJ rejected Plaintiff's request for a consultative examination for depression during the December 9, 2002 hearing. The ALJ stated, at the outset of the hearing, that she only orders consultative examinations in rare situations, which this was not. (Tr. at 117.) The ALJ did ...

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