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McClease v. Commissioner of Social Security

October 28, 2009

CATHY MCCLEASE, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Yohn, J.

Memorandum

Cathy McClease appeals the denial of her claim for Social Security Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI") by the Commissioner of Social Security. She seeks judicial review pursuant to 42 U.S.C. § 1383(c)(3) and § 405(g) of the Social Security Act. I referred the matter to a magistrate judge, who submitted a report and recommendation recommending that I affirm the Commissioner's decision to deny McClease disability benefits. McClease filed objections to the report and recommendation. I conclude that the Administrative Law Judge's ("ALJ's") final determination that McClease did not have a disability and was therefore ineligible for benefits lacked substantial evidence to support it because of errors at the step two phase of the analysis. Accordingly, I will sustain the objections in part and will remand the matter to the Commissioner for further proceedings consistent with this memorandum.

I. Factual and Procedural Background*fn1

McClease is a 50-year-old woman who lives alone with her minor granddaughter.*fn2 (ALJ Dec. 6.) In the past, she has worked as a laborer, truck operator, canvasser, and assembler. (ALJ Dec. 6.) Now no longer engaged in substantial gainful activity, McClease claims that she is disabled as a result of her anxiety, depression, and a uterine disorder that causes severe cramping during menses. (ALJ Dec. 3.)

McClease's anxiety and depression appear to have reached clinical levels in 2000. At that time, she was hospitalized following a major depressive episode precipitated by various stressors, including her adult daughter's repeated violent behavior.*fn3 (R. 113.) McClease was diagnosed at that time with "MDD [Major Depressive Disorder],*fn4 severe [with] psychosis." (R. 151.) She testified that she has not worked since 2000. (ALJ Dec. 3; ALJ Tr. 7.) She has been receiving regular mental health treatment, including therapy and medication, since 2001. (ALJ Dec. 4.) In February 2005 she was briefly hospitalized for the aftereffects of an episode of poly-substance abuse. There is no evidence of substance use since 2005. (ALJ Dec. 5.) In December 2005 she sought hospital treatment for stroke-like symptoms that, according to physicians, were most likely due to anxiety. (Id.) McClease's adult daughter's violent behavior has continued to be a significant source of McClease's anxiety. (ALJ Dec. 4-5.) McClease's anxiety symptoms decrease when her daughter, who has been "in and out of jail," is incarcerated. (ALJ Dec. 4-5.) In early 2005, McClease obtained a protection from abuse order against her daughter, but in August 2005 McClease and her daughter were involved in another altercation at McClease's house. (ALJ Dec. 4-5.) McClease testified in June 2006 that she no longer had an outstanding protection from abuse order against her daughter because she "can't afford it," but that the August 2005 incident was the last time her daughter came to McClease's home. (ALJ Tr. 11, 13.) McClease claims that her anxiety causes concentration and memory impairments, nervousness when she is around "too many people," and occasional insomnia, loss of appetite, and panic attacks. (ALJ Dec. 4-5.)

McClease also has a history of uterine problems. From as early as 1995 until 2004, McClease saw Dr. Aaron Hasiuk, M.D., to treat her heavy menstrual bleeding, clotting, and cramping that at times, according to Dr. Hasiuk's reports, left her "doubled over" in pain. (R. 192-93, 460, 585.) Dr. Hasiuk performed two surgeries in May and August 2004 in an attempt to alleviate these symptoms. (R. 570-71, 564-65.) However, in October 2004 Dr. Hasiuk noted that it was "impossible to do the [surgeries] properly both times" and that McClease continued to experience heavy bleeding seven days out of the month, accompanied by "severe cramping." (R. 460.) At that point Dr. Hasiuk prescribed Percocet and recommended a hysterectomy. (Id.) McClease has testified that the two surgeries were ineffective and that her uterine symptoms have not improved significantly since October 2004. (ALJ Tr. 18-21.) However, the record does not contain any documentation of further surgical or other treatment for this condition. (ALJ Dec. 3.) McClease testified at the hearing that she chose not to undergo a hysterectomy because she felt her sister had been "not the same" after undergoing a hysterectomy. (ALJ Tr. 21.)

McClease has filed two prior claims for DIB and SSI, both of which were denied. (ALJ Dec. 1.) She filed her first claim on July 17, 2000, following her initial hospitalization for depression, claiming disability as a result of depression and migraines. (R. 276-82.) The ALJ issued an adverse decision on December 10, 2001 and review was denied on November 8, 2002.

(R. 282, 288.) McClease filed her second claim in January 2003, and the ALJ denied this claim in April 2004.*fn5 (ALJ Dec. 1.) There is no evidence that she requested further review by the Appeals Council. (ALJ Dec. 1.)

McClease then filed the instant claim on October 7, 2004, alleging disability beginning May 11, 2004.*fn6 (ALJ Dec. 1.) The Commissioner initially denied this claim in February 2005. (ALJ Dec. 1.) McClease requested a hearing, which took place before an ALJ on June 6, 2006. (ALJ Dec. 1.) McClease was represented at this hearing. (Id.) The ALJ found that McClease was not disabled and issued an adverse decision on June 29, 2006. (R. 18.) McClease requested review by the Appeals Council, which the Council denied on January 4, 2007. (R. 8-10).

On April 14, 2008, McClease filed in this court a Request for Review of the ALJ's decision. McClease's claim was randomly assigned to a magistrate judge for a report and recommendation. The magistrate judge conducted oral arguments on July 15, 2009. In his report and recommendation, the magistrate judge concluded that the ALJ's decision was supported by substantial evidence and recommended that this court affirm the Commissioner's decision to deny benefits to plaintiff. McClease has filed objections to the magistrate judge's report, and the Commissioner has filed a response to McClease's objections.

I conclude that the ALJ did fail to consider some evidence relevant to McClease's uterine symptoms and that this failure calls into question her ultimate conclusion that McClease is able to perform work in the national economy. Accordingly, I will remand the case to the ALJ for further consideration.

II. Legal Standard

A. Standard of Review

A district court reviews de novo the parts of the magistrate judge's report and recommendation to which either party objects. 28 U.S.C. § 636(b)(1) (2006). The district court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id.

In contrast, the district court may only review the ALJ's final decision in order to determine "whether that decision is supported by substantial evidence." Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing42 U.S.C. § 405(g)). This standard of review is deferential. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185,1190 (3d Cir. 1986). "Substantial evidence 'does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hartranft, 181 F.3d at 360 (quoting Pierce v. Underwood, 487 U.S. 552 (1988)). The court may not "weigh the evidence," Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), and "will not set the Commissioner's decision aside if it is supported by substantial evidence, even if [the court] would have decided the factual inquiry differently," Hartranft, 181 F.3d at 360.

In making this determination, however, the court must consider "the evidentiary record as a whole, not just the evidence that is consistent with the agency's finding." Monsour, 806 F.2d at 1190. "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. Nor is evidence substantial if it is overwhelmed by other evidence . . . or if it really constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).

B. Standard for Disability Determination

To qualify for DIB or SSI disability insurance payments, a claimant must have a disability. 42 U.S.C. §§ 423(a)(1)(E) (DIB), 1382(a)(1) (SSI).*fn7 A disability is the "inability 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." Id. § 423(d)(1)(A). A person has a disability when the person's impairment or combination of impairments render him or her unable either to return to previous work or, "considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A).

When evaluating a claim for disability benefits, the Commissioner applies a five-step sequential analysis: (1) whether the claimant worked during the alleged period of disability, (2) whether the claimant has a "severe medically determinable physical or mental impairment," (3) whether the impairment meets the requirements of a "listed impairment" found in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Appendix 1"), (4) whether the claimant can continue to perform "past relevant work," and (5) whether the claimant can perform "other work" in the national economy. 20 C.F.R. §§ 404.1520(a)(4) (2008), 416.920(a)(4) (2008);*fn8 Sykes v. Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000). The claimant bears the burden of proof at steps one, two, and four.*fn9 If the claimant satisfies these requirements, the burden of production shifts to the Commissioner to show that the claimant is capable of performing other work available in the national economy. Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).

The severity test at step two is a "de minimis screening device to dispose of groundless claims." McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360-61 (3d Cir. 2004) (quoting Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003)). The ALJ will generally find a condition to be severe if it has any significant effect on a claimant's ability to work. Newell, 347 F.3d at 546-47. However, an impairment will not qualify as "severe" if it does not "significantly limit [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). As the Third Circuit has explained, although the standard for substantial evidence at step two is the same as at all other steps, "because step two is to be rarely utilized as basis for the denial of benefits . . . its invocation is certain to raise a judicial eyebrow." McCrea, 370 F.3d at 361.

At step three, the ALJ considers whether any of the claimant's credibly established impairments, alone or in combination, meet or equal any of the impairments listed in Appendix 1. If so, the claimant will be automatically entitled to benefits. Id. § 404.1520(a)(4)(iii). If the claimant's impairment does not meet or equal a listed impairment, the Commissioner must assess at step four the claimant's Residual Functional Capacity ("RFC"), a measure of what the claimant can do in a work setting despite the claimant's physical and mental limitations. Id. §§ 404.1520(e), 404.1545(a)(1). When assessing RFC, the Commissioner must consider the combined effect of all of a claimant's impairments of which there is objective medical evidence, including any that, considered alone, would not be considered "severe." Id. § 404.1545(a)(2); Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 122 (3d Cir. 2000). The Commissioner must consider not only a claimant's ability to do specific job-related tasks, but also her ability to perform these tasks on a "regular and continuing basis." 20 C.F.R. § 404.1545(b), (c). Because the RFC determination may ultimately be dispositive of an individual's social security claim, the Commissioner need not adopt any particular doctor's or expert's opinion on a claimant's RFC. Id. § 404.1527(e).

At step four, the ALJ compares the claimant's RFC to the requirements of the claimant's past jobs in order to determine whether the claimant can return to that previous work. If not, the ALJ moves on to step five, at which point he considers the claimant's RFC, physical ability, age, education, and work experience in order to determine ...


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