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Fleischmann v. Astrue

November 20, 2009


The opinion of the court was delivered by: David Stewart Cercone United States District Judge



Plaintiff, John A. Fleischmann, commenced the instant action on December 14, 2007, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security denying his claims for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles II and XVI of the Social Security Act, 42 U.S.C. §401 et seq, §1381 et seq. Plaintiff filed an application for SSI and DIB on April 25, 2005, alleging that he was disabled since January 1, 2004, due to depression. (AR. 19). His application was initially denied, and Plaintiff requested a hearing before an administrative law judge ("ALJ"). (AR. 70). A hearing was held on March 14, 2007, and following this hearing, the ALJ found that Plaintiff was not disabled at any time through the date of the decision, and therefore was not eligible for SSI or DIB benefits. (AR.19-27). Plaintiff made a request for review by the Appeals Council which was denied (AR. 5-7,15), thus rendering the Commissioner's decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ's decision. Presently pending before the Court are cross-motions for summary judgment. Upon analysis and consideration of each submission, and as set forth herein, the Commissioner's Motion for Summary Judgment is denied, Plaintiff's Motion for Summary Judgment is granted and the decision of the Administrative Law Judge is reversed and remanded.


When reviewing a decision denying DIB and SSI, the district court's role is limited to determining whether substantial evidence exists in the record to support the ALJ's findings of fact. Burns v. Barnhart,312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Additionally, if the ALJ's findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. 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 v. Barnhart, 399 F.3d 546, 552 (3d Cir.2005). To determine whether a finding is supported by substantial evidence, however, the district court must review the record as a whole. See 5 U.S.C. §706.

To be eligible for social security benefits under the Act, a claimant must demonstrate that he cannot engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. §423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986).

The ALJ must utilize a five-step sequential analysis when evaluating the disability status of each claimant. 20 C.F.R. §404.1520. The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or a combination of impairments that is severe; (3) whether the medical evidence of the claimant's impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R., pt. 404 subpt. P., appx. 1; (4) whether the claimant's impairments prevent him from performing his past relevant work; and (5) if the claimant is incapable of performing his past relevant work, whether he can perform any other work which exists in the national economy. 20 C.F.R. §404.1520(a)(4).

If the claimant is determined to be unable to resume previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given plaintiffs's mental or physical limitations, age, education, and work experience, he or she is able to perform substantial gainful activity in jobs available in the national economy. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).


Plaintiff was born on January 14, 1959, and was 48 years old on the date of the ALJ's decision. (AR. 19, 33). He graduated high school and has a Bachelor's degree in business information systems and has past relevant work history as a contract consultant. (AR. 33, 87).

On April 20, 2004, Plaintiff was seen by Dr. Jeffery Gretz having complaints of depression. (AR. 132). Plaintiff complained of not being able to sustain employment or have ambition towards getting a new job and Plaintiff associated his depression to his divorce. (Id.). Dr. Gretz recommended that Plaintiff take Lexapro and for Plaintiff to seek counseling if he desired. (Id.). On July 20, 2004, Dr. Gretz noted that Plaintiff was still suffering from depression and that Plaintiff did not receive any benefit from the Lexapro. (AR. 131). Dr. Gretz then recommended that Plaintiff take Wellbutrin. (Id.). On August 18, 2004, Plaintiff complained to Dr. Gretz that the Wellbutrin was causing him to feel nauseated and have a little bit of tachycardia. (AR. 130). Dr. Gretz suggested that the tachycardia might be secondary from an upcoming custody trial that Plaintiff was facing as his EKG showed no signs of any significant abnormality. (Id.). On November 22, 2004, Dr. Gretz reported that Plaintiff was still suffering from some degree of depression and he was going to prescribe Cymbalta. (AR.129). On March 7, 2005, Dr. Gretz noted that Plaintiff was feeling more upbeat although he had not yet been able to find a job and still had some degree of depression. (AR.128). Plaintiff stated that he was interested in pursuing counseling, which Dr. Gretz then referred him to. (Id.).

Plaintiff was given a clinical psychological disability evaluation by Dr. Lanny Detore on July 9, 2005. (AR.134). Dr. Detore reported that it was obvious from Plaintiff's appearance that he suffered from some depression, as Plaintiff was unshaven and somewhat disheveled. (Id.). Plaintiff reported that he continued to take the Cymbalta, however, he admitted he would stop taking the medication for a few days because of unspecified side effects. (AR.135). Plaintiff reported that the Cymbalta had been mildly helpful in alleviating his depression. (Id.). Dr. Detore noted that Plaintiff's depression appeared to be primarily situationally related and he would respond to counseling. (Id.). Plaintiff also told Dr. Detore that he shared a house with a friend, he lived independently, retained his daily living skills, and that though he had friend, he limited his social contact. (AR. 135-136).

Plaintiff told Dr. Detore that he suffered a decrease in motivation, interest and energy. (AR. 135). Plaintiff also complained of erratic sleep patterns, decrease in appetite, and significant weight fluctuation. (AR. 136). Plaintiff denied any delusional activity, paranoia, hallucinations or any active suicidal ideation. (Id.). Plaintiff also reported a loss in interest in his prior hobbies of tennis and hunting. (Id.). Plaintiff's affect was sad and his mood was moderately depressed (Id.). Dr. Detore indicated that Plaintiff's concentration and memory were fair and that he had difficulty with distractibility and attentiveness, particularly on job interviews. (Id.).

Plaintiff was able to add subtract and multiply single digits, process serial sevens and no difficulty with immediate memory recall. (AR.137). Dr. Detore found that Plaintiff's prognosis was fair to good depending on whether he received mental health treatments and antidepressants. (Id.). Dr. Detore determined that Plaintiff was able to live independently and manage minimally his daily living skills, that he could focus enough to prepare meals, however, his social activities and relationships ...

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