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Richard Scott Magee, Plaintiff v. Michael J. Astrue

December 15, 2010


The opinion of the court was delivered by: Judge Nora Barry Fischer



Plaintiff, Richard S. Magee, ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("the Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and XVI of Social Security Act, 42 U.S.C. §§ 1318-1383 (the "Act"). This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 9, 11). The record has been developed at the administrative level. For the following reasons, the Court finds that the decision of the Administrative Law Judge ("ALJ") is AFFIRMED.


Plaintiff filed applications for DIB*fn1 and SSI*fn2 on October 12, 2007 and again on May 2, 2008, claiming disability beginning November 26, 2006. (R. at 127, 129, 133, 138, 145). His claim was denied on September 9, 2008, (R. at 64-85), and Plaintiff filed a request for review on October 27, 2008. (R. at 86-87). Plaintiff‟s request for a hearing was granted, and a hearing was held before Administrative Law Judge Brian W. Wood in Mars, Pennsylvania on September 14, 2009, where Plaintiff was represented by Christine M. Nebel, Esq. (R. at 89-110, 11-32). ALJ Wood issued an unfavorable decision on October 7, 2009. (R. at 38-50).On May 13, 2010, the Appeals Council denied Plaintiff‟s request for review, making the ALJ‟s October 7, 2009 decision the final decision of the Commissioner. (R. at 1-3).

The instant action was initiated when Plaintiff filed a Complaint in this Court on July 2, 2010, pursuant to 42 U.S.C. § 405(g) for claims under Title II and Section 1631(c)(3) for claims under Title XVI. (Docket No. 3). Defendant filed his Answer on September 7, 2010. (Docket No. 4). Plaintiff‟s Motion for Summary Judgment and accompanying Brief were filed on October 25, 2010 (Docket No. 9, 10). Defendant‟s Motion for Summary Judgment and accompanying Brief were filed on November 15, 2010. (Docket No. 12).


Judicial review of the Commissioner‟s final decision on disability claims is provided by statute. 42 U.S.C. §§ 405(g)*fn3 and 1383(c)(3)*fn4 . Section 405(g) permits a district court to review Any individual, after any final decision of the [Commissioner] made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a transcripts and records upon which a determination of the Commissioner is based. Because the standards for eligibility and judicial review under Title II (42 U.S.C. §§ 401-433, regarding DIB) are virtually identical to the standards under Title XVI (42 U.S.C. §§ 1381-1383(f), regarding SSI), regulations and decisions rendered under the Title II disability standard, 42 U.S.C. § 432, 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).

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, 312 F.3d at 118. 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Further, if the ALJ‟s findings of fact are supported by substantial evidence, they are conclusive. See 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390.

A district court cannot conduct a de novo review of the Commissioner‟s decision nor re-weigh evidence of record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); see also Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986) ("even where this court acting de novo might have reached a different conclusion [...] so long as the agency‟s factfinding is supported by substantial evidence, reviewing courts lack power to reverse either those findings or the reasonable regulatory interpretations that an agency manifests in the course of making such findings"). 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 or she 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 twelve months. 42 U.S.C. § 423 (d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986).

An ALJ must utilize a five-step sequential analysis when evaluating the disability status of a 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 (see 20 C.F.R. §§ 416.920(d), 416.925, 416.926); (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); see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003).

If the claimant is determined to be unable to resume previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given the claimant‟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).


A. General Background

Plaintiff was born on February 20, 1961. He alleges disability since November 26, 2006, when he was 45 years of age. (R. at 128). He has never married, has no children, and presently lives with his parents in their home in Butler, Pennsylvania. (R. at 127-128, 134). Plaintiff graduated from Knoch High School and also completed welding training at Airco Technical Institute. (R. at 229, 167, 234).

Plaintiff‟s father is a retired mailman, and his mother worked at a financial agency. (R. at 234). He has one younger sister. (Id.). He claims that his relationship with his father is strained and tense, because his father used to physically abuse him by beating him with a belt as a child.

(R. at 223, 228). He also feels that his father favored his sister. (R. at 229). Yet, Plaintiff considers his family as his only support system. (R. at 223). For example, his parents usually have to remind him to pay his bills. (R. at 202).

Presently, Plaintiff is employed as a part-time delivery driver by Thoma Meat Market, Inc., where he earns between $2400 and $2700 per month. (R. at 147-149). His past work experience includes a variety of positions, including employment with an embroidery service, several construction companies, an asphalt and paving company, a demolition crew, a home improvement group, a custom building and remodeling corporation, a development group, a golf course, and most recently the meat market. (R. at 152-157). This type of work is considered semi-skilled with the exception of Plaintiff‟s work as a carpenter, which is considered skilled.

(R. at 28). However, Plaintiff has not maintained consistent employment with the same employer for more than six to eight months at one time because he has difficulty motivating himself to go to work. (R. at 231). He has also been fired by many of his previous employers due to his failure to appear for his scheduled shifts. (R. at 182, 229, 231).

B. Plaintiff's Medical Background

In Plaintiff‟s applications for benefits, he claims disability resulting from his mental impairments. (R. at 133, 138, 127-29, 145). Hence, the Court will only consider Plaintiff‟s medical background regarding his mental impairments at this time.

1.Butler Memorial Hospital: February 19, 2007 - February 22, 2007Plaintiff was admitted to Butler Memorial Hospital with increasing depression and complained that he was unable to afford his medications for his bipolar disorder*fn5 and multiple psychosocial stressors. (R. at 223). Dr. Thomas Shetter, his primary care physician, treated him upon his arrival, and Dr. John Soffietti oversaw Plaintiff‟s treatment upon his release. (R. at 223, 225, 228). Initially, Dr. Shetter diagnosed Plaintiff with possible hypertension,*fn6 and bipolar disorder, and he noted Plaintiff‟s history of cigarette smoking. (R. at 225). Plaintiff was evicted from his apartment the day before he visited the hospital, causing him to move back in with his parents. (Id.). He has a history of a back fracture and multiple orthopedic procedures, but he has recovered without any residual symptoms. (Id.). During previous outpatient sessions, he was diagnosed with bipolar disorder and treated with lithium*fn7 briefly before doctors started him on Paxil*fn8 in conjunction with Lamictal.*fn9 (Id.). He noted that the medications were an effective combination but he could no longer afford them due to financial constraints. (Id.).

Dr. Soffietti found Plaintiff to be alert, fluent, and sad, but noted that Plaintiff had a slowed psychomotor. Plaintiff did not manifest any formal or informal thought disorder, and while he reported having fleeting suicidal thoughts, he adamantly denied any intent by stating, "I‟m afraid of dying." (R. at 224). Dr. Soffietti diagnosed Plaintiff with bipolar disorder, type II, depressive type,*fn10 because of his deteriorating social situation, loss of his job, and bankrupt financial situation. (Id.). He restarted Plaintiff on Lamictal at a smaller dose and lithium as well. (Id.). Because Plaintiff is merely a social drinker, Dr. Soffietti ruled out episodic alcohol abuse, however he noted that Plaintiff had an elevated glucose level. (Id.). Plaintiff was discharged on February 22, 2007 and referred to Irene Stacy.

2. Irene Stacy Community Mental Health Center: Psychiatric Evaluation: March 12, 2007

Dr. Randon Simmons personally evaluated Plaintiff upon his referral to Irene Stacy Community Mental Health Center on March 12, 2007 (hereinafter, "Irene Stacy"). (R. at 227). Plaintiff had ceased taking his prescribed medications for three years prior to his admission to Butler Memorial Hospital due to financial constraints. (Id.). He stated that the quickest way, as he had been told, to get back on medication was to be admitted to the hospital. (Id.). Since being hospitalized, Plaintiff‟s appetite improved, and he ate three times daily, gaining five to ten pounds in the three weeks following his visit. (Id.). He reported no difficulty falling asleep and was attempting to regulate his sleep on a daily schedule. (Id.). He denied recent mood swings and rated his mood as a four on a scale of one to ten, attributing the elevation to his recent hospital visit. (Id.). However, he still did not have the motivation to engage in activities that he previously enjoyed. For example, he turned down an opportunity to participate in a bowling tournament to win money, because he claimed he did not have the requisite energy. (Id.).

Plaintiff was previously treated at Irene Stacy in the Drug and Alcohol Department in January 1989, and his case was closed after two appointments. (R. at 228). In 2003, he was treated at Community Alternatives, where he was diagnosed with bipolar disorder and depression. (Id.). During the 2007 evaluation, Dr. Simmons found Plaintiff to be extremely oriented, pleasant, and cooperative, but he categorized Plaintiff‟s mood as dysphoric,*fn11 including sadness and some irritability. (R. at 229). Plaintiff denied any suicidal or homicidal ideation or intent, any delusions, and any hallucinations. (Id.). Dr. Simmons diagnosed Plaintiff with bipolar disorder, type II, depressive type, and moderate psychosocial stressors. (Id.). Dr. Simmons also assigned Plaintiff a GAF*fn12 score of 45 and discontinued his lithium prescription. (Id.).

At Irene Stacy, Dr. Simmons personally evaluated Plaintiff on several occasions from April 9, 2007 through September 24, 2008. (R. at 291-308). During the course of treatment, Dr. Simmons determined that Plaintiff had moderate limitations regarding his restriction in the activities of daily living and difficulties in maintaining social functioning. (R. at 300). He found that Plaintiff had frequent deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner, in work settings or elsewhere. (Id.). Similarly, he noted that Plaintiff had repeated, defined as three or more, episodes of deterioration or decompensation, each of extended duration. (Id.). Dr. Simmons based his reasoning for his opinions on the presence of the following evidence:

Anhedonia or pervasive loss of interest in almost all activities Appetite disturbance with change in weight Sleep disturbance Psychomotor agitation or retardation Decreased energy Feelings of guilt or worthlessness Difficulty concentrating or thinking (R. at 298). Flight of ideas (R. at 299).

Plaintiff often reported to Dr. Simmons that his mood, while stable, should be more elevated and energetic. (R. at 301-305, 315-317).

3. Consultative Examination Report, January 9, 2008 - January 21, 2008

Dr. Suzanne Houk personally evaluated Plaintiff at Houk Psychological Services on January 9, 2008. (R. at 231). She noted that Plaintiff was first diagnosed with bipolar disorder, depressive type, in 2002 after spending time in jail for failure to appear at a hearing for a traffic violation. (R. at 232). At the time of his visit with Dr. Houk, he was prescribed 200 mg of Lamictal and 150 mg of Wellbutrin*fn13 due to his regular monthly counseling sessions at Irene Stacy. (Id.). According to Plaintiff, he became preoccupied easily and often drove by places he intended to go because he was daydreaming. He had racing thoughts and a "nervous twitch" that made him self-conscious in public. (R. at 233). Plaintiff stated that he went tanning regularly to elevate his mood. (R. at 234). Dr. Houk noted that Plaintiff appeared mildly anxious, pleasant, cooperative, and oriented to person, place, and time. (Id.). She found no evidence ...

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