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Fligge v. Astrue

April 1, 2009

KAREN N. FLIGGE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Electronically Filed

MEMORANDUM OPINION

I. Introduction

Plaintiff Karen N. Fligge ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). Consistent with the customary practice in the Western District of Pennsylvania, the parties have filed cross-motions for summary judgment on the record developed during the administrative proceedings. Doc. Nos. 7 & 10.

After careful consideration of the Commissioner's decision, the memoranda of the parties, and the medical and testimonial evidence contained in the record, the Court is convinced that the decision of the Commissioner is not "supported by substantial evidence" within the meaning of § 405(g). Therefore, the Court will deny Plaintiff's motion for summary judgment insofar as it seeks an award of benefits, grant Plaintiff's motion for summary judgment insofar as it seeks a remand for further administrative proceedings, deny the Commissioner's motion for summary judgment, vacate the administrative decision currently under review, and remand the case for further administrative proceedings.

II. Procedural History

Plaintiff applied for DIB on November 7, 2002, with a protective filing date of October 16, 2002, alleging disability as of October 1, 2001, due to insulin-dependent diabetes, coronary artery disease, hypertension, depression and tachycardia. R. 30. After the initial denial of this application by the state agency, a hearing was held in Latrobe, Pennsylvania, before Administrative Law Judge Robert C. Deitch ("Judge Deitch"). R. 341-371. On May 24, 2004, Judge Deitch issued a decision that was partially favorable and partially unfavorable to Plaintiff.

R. 28-38. It was determined that Plaintiff had been disabled from October 1, 2001, through September 23, 2003, but that she had regained the capacity to engage in substantial gainful activity as of September 24, 2003. R. 38. Consequently, Plaintiff was entitled to a closed period of disability. The Appeals Council denied Plaintiff's request for review on November 15, 2004.

R. 39.

Plaintiff filed a second application for DIB on December 31, 2004, alleging disability as of September 24, 2003, due to chronic ischemic heart disease, coronary artery disease, insulin-dependent diabetes mellitus with neuropathy and retinopathy, chronic back pain syndrome, ulcers, bilateral carpal tunnel syndrome, a gallbladder disorder, cataracts, and an affective disorder characterized by depression. R. 14. The state agency denied the claim on March 4, 2005. R. 48. On March 31, 2005, Plaintiff filed a timely request for an administrative hearing.

R. 53. Pursuant to this request, a hearing was held on January 5, 2006, in Latrobe, Pennsylvania, before Administrative Law Judge Douglas W. Abruzzo ("Judge Abruzzo" or the "ALJ"). R. 372-418. In a decision dated June 28, 2006, the ALJ determined that Plaintiff was not "disabled" within the meaning of the Act. R. 11-21. Plaintiff's request for review was denied by the Appeals Council on September 28, 2006. R. 5.

On November 21, 2006, Plaintiff commenced an action against the Commissioner. CV-06-1561, Doc. No. 1. After the filing of cross-motions for summary judgment, this Court vacated the Commissioner's administrative decision, and remanded the case for further proceedings, on April 27, 2007. CV-06-1561, Doc. No. 10. In response to the Court's remand order, the Appeals Council remanded the case back to the ALJ. R. 459. On October 29, 2007, another hearing was held before the ALJ in Johnstown, Pennsylvania. R. 572-602. In a decision dated February 14, 2008, the ALJ again concluded that Plaintiff was not "disabled" within the meaning of the Act. R. 419-432. Plaintiff responded by commencing the instant action against the Commissioner on June 11, 2008. Doc. No. 1. Plaintiff and the Commissioner filed motions for summary judgment on October 3, 2008, and November 3, 2008, respectively. Doc. Nos. 7 & 10. These motions are the subject of this memorandum opinion.

III. Statement of the Case

In his decision, the ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2008.

2. The claimant has not engaged in substantial gainful activity since September 24, 2003, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).

3. The claimant has the following medically determinable impairments: obesity, coronary artery disease, hypertension, hyperlipidemia, tachycardia, bilateral carpal tunnel syndrome, right sciatic neuropathy, insulin dependent diabetes mellitus with retinopathy, stomach ulcers/gastritis, cholecystitis, a depressive disorder and a dysthymic disorder (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments (20 CFR 404.1521).

5. Should any reviewing authority reweigh the evidence and determine the claimant does have a "severe" impairment, the undersigned specifically finds, in the alternative, the claimant is capable of work in the heavy exertional level which is not in the medical field and capable of performing other employment which exists in significant numbers in the local and national economies.

6. The claimant has not been under a disability, as defined in the Social Security Act, from September 24, 2003, through the date of this decision (20 CFR 404.1520(c)).

R. 424-431. Plaintiff argues that the ALJ erred in determining that her impairments were not "severe," that his assessment of her credibility is not supported by substantial evidence, and that his opinion reflects a bias that he has against her. Doc. No. 8, pp. 8-26.

IV. Standards of Review

Judicial review of the Commissioner's final decisions on disability claims is provided by statute. 42 U.S.C. §§ 405(g)*fn1 and 1383(c)(3)*fn2 . Section 405(g) permits a district court to review transcripts and records upon which a determination of the Commissioner is based. Because the standards for eligibility under Title II (42 U.S.C. §§ 401-433, regarding e standards under Title XVI (42 U.S.C. §§ 1381-1383f, regarding Supplemental Security Income, or "SSI"), regulations and decisions rendered under the Title II disability standard, 42 U.S.C. § 423, are pertinent and applicable in Title XVI decisions rendered under 42 U.S.C. § 1381(a). Sullivan v. Zebley, 493 U.S. 521, 525 n. 3 (1990); Burns v. Barnhart, 312 F.3d 113, 119 n.1 (3d Cir. 2002).

Substantial Evidence

If supported by substantial evidence, the Commissioner's factual findings must be accepted as conclusive. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995); Wallace v. Secretary of HHS, 722 F.2d 1150, 1152 (3d Cir. 1983). The district court's function is to determine whether the record, as a whole, contains substantial evidence to support the Commissioner's findings. See Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971). The Supreme Court has explained that "substantial evidence" means "more than a mere scintilla" of evidence, and is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). See Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); Ventura, 55 F.3d at 901 (quoting Richardson); Stunkard v. Secretary of HHS, 841 F.2d 57, 59 (3d Cir. 1988).

The United States Court of Appeals for the Third Circuit has referred to this standard as "less than a preponderance of the evidence but more than a mere scintilla."Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002), quoting Jesurum v. Secretary of the Dep't of Health and Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). "A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence." Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993), quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). The substantial evidence standard allows a court to review a decision of an ALJ, yet avoid interference with the administrative responsibilities of the Commissioner. See Stewart v. Secretary of HEW, 714 F.2d 287, 290 (3d Cir.1983).

In reviewing the record for substantial evidence, the district court does not weigh the evidence or substitute its own conclusions for those of the fact finder. Rutherford, 399 F.3d at 552. In making this determination, the district court considers and reviews only those findings upon which the ALJ based his or her decision, and cannot rectify errors, omissions or gaps in the medical record by supplying additional findings from its own independent analysis of portions of the record which were not mentioned or discussed by the ALJ. Fargnoli v. Massarini, 247 F.3d 34, 44 n.7 (3d Cir. 2001) ("The District Court, apparently recognizing the ALJ's failure to consider all of the relevant and probative evidence, attempted to rectify this error by relying on medical records found in its own independent analysis, and which were not mentioned by the ALJ. This runs counter to the teaching of SEC v. Chenery Corp., 318 U.S. 80 (1943), that '[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.' Id. at 87"; parallel and other citations omitted).

Five Step Determination Process

To qualify for DIB under Title II of the Act, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); 42 U.S.C. § 423 (d)(1) (1982). Similarly, to qualify for SSI, the claimant must show "he 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." 42 U.S.C. § 1383c(a)(3)(A).

When resolving the issue of whether a claimant is disabled and whether the claimant is entitled to either DIB or SSI benefits, the Commissioner utilizes the familiar five-step sequential evaluation process. 20 C.F.R. §§ 404.1520 and 416.920 (1995). See Sullivan, 493 U.S. at 525. The Court of Appeals for the Third Circuit summarized this five step process in Plummer v. Apfel, 186 F.3d 422 (3d Cir.1999):

In step one, the Commissioner must determine whether the claimant is currently engaging in substantial gainful activity. 20 C .F.R. § 404.1520(a). If a claimant is found to be engaged in substantial activity, the disability claim will be denied. . . . In step two, the Commissioner must determine whether the claimant is suffering from a severe impairment. 20 C.F.R. § 404.1520(c). If the claimant fails to show that her impairments are "severe", she is ineligible for disability benefits.

In step three, the Commissioner compares the medical evidence of the claimant's impairment to a list of impairments presumed severe enough to preclude any gainful work. 20 C.F.R. ยง 404.1520(d). If a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. Step four requires the ALJ to consider whether the claimant retains the residual functional capacity to perform her past relevant work. 20 C.F.R. ...


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