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Debra Scandone v. Michael J. Astrue

August 18, 2011

DEBRA SCANDONE,
PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

MEMORANDUM ON REQUEST FOR REVIEW

Plaintiff Debra Scandone ("Scandone") requests judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-433, 1381-1383(c). (Compl., ECF No. 1.) Pending before the Court are Scandone's Complaint and her Brief and Statement of Issues in Support of Request for Review (Pl.'s Br., ECF No. 20), the Commissioner's response thereto (Resp., ECF No. 23), and Scandone's Reply (Reply, ECF No. 24). After careful and independent consideration of the matter, and for the following reasons, the Court will deny Scandone's request for review.

I. Factual and Procedural Background

The history of this matter is lengthy and complicated, spanning more than fifteen years. Three different ALJs have issued five different decisions on Scandone's two applications for benefits. The Appeals Council vacated the first of these decisions, Judge Brody and the undersigned remanded the next three decisions, and the fifth decision is the subject of this Memorandum. The three ALJs, together with a fourth, also combined to hold four hearings and the two-volume administrative record spans more than 1100 pages.

Scandone filed her first application for DIB and SSI on July 31, 1996. (A.R. 703.) She claimed a disability onset date of May 1, 1994, at which time she was forty years old. (Id.) She filed her second application for DIB and SSI on July 10, 2011. (Id. 198.) She claimed a subsequent onset date of September 10, 2000, at which time she was forty-seven years old. (Id.) Scandone has prior relevant work experience as an office manager, retail sales clerk, and receptionist. (Id. 18.) She graduated from college with a bachelor's degree in fine arts. (Id. 612.) Scandone claims disability due to syringomyelia, fibromyalgia, interstitial cystitis, chronic fatigue, and depression. (Id. 231, 712.)

Scandone claims two periods of disability: May 1, 1994 through September 1998, and September 10, 2001 to the present. (Id. 609-10; Pl.'s Br. at 1.) ALJ Moskal, whose June 2007 decision is the subject of this review, determined Scandone has been disabled since July 18, 2003, but not before. (A.R. 20.) Accordingly, the Court must determine whether substantial evidence supports the conclusion that Scandone was not disabled from May 1, 1994 through September 1998, and again from September 10, 2001 through July 17, 2003.

A brief recap of the numerous decisions in this case will set the stage for the Court's task.

In June 1998, ALJ Garrety concluded Scandone was not disabled because, despite impairments due to cystitis, fibromyalgia, and reactive depression, she remained capable of performing unskilled light work with minimum levels of occupational stress and access to bathrooms. (Id. 663.) ALJ Garrety denied Scandone's original application for benefits because, although she could not perform her past relevant work with these limitations, she was capable of performing jobs available in significant numbers in the economy. (Id. 667.) The Appeals Council vacated this decision in September 2000 for failure to consider whether Scandone's depression met the regulatory listing criteria. (Id. 672-74.)

On remand from the Appeals Council, ALJ Garrety issued her second decision in August 2001. ALJ Garrety again limited Scandone to light work, which does not require lifting more than twenty pounds, exposure to more than low stress, or performance of more than simple one to two step tasks. (Id. 651.) She also required a work station in proximity to the restroom. (Id.) The Appeals Council approved this decision, but on request for review to the this Court, Judge Brody found the decision lacking in several respects. See Scandone v. Barnhart, No. 02-2892, 2003 WL 22797732 (E.D. Pa. Nov. 17, 2003). Judge Brody found no error in ALJ Garrety's impairment listing analysis; her rejection of the opinions of Dr. Herring and Dr. Whalen; or her rejection of Scandone's claimed limitations because they conflicted with her daily activities and subsequent employment record. Id. at *1-3, 4. Judge Brody also found no error in the ALJ's failure to resolve a conflict between the vocational expert ("VE") and Dictionary of Occupational Titles because no one raised the conflict at the hearing. Id. at *3-4. Judge Brody nevertheless remanded to the ALJ to consider two issues: first, the ALJ's discussion of the opinion of Dr. L. Robert Griffin was insufficient*fn2 ; second, the ALJ failed to discuss the weight attributable to the testimony of Scandone's friend, Blaine Packer. Id. at *2-3, 4.

During this time, Scandone's second application for benefits was also pending review. The Commissioner initially denied her claim on December 17, 2001. (A.R. 112.) Scandone requested a hearing before an ALJ (id. 116), and ALJ Strauss denied her claim in an October 31, 2002 decision (id. 43-53). In her decision, ALJ Strauss concluded Scandone's alleged mental limitations were not severe, and any lapses were attributable to her pain not her depression. (Id. 51.) Further, she concluded Scandone's complaints were only partially credible because many of her complaints were ameliorated by dental repairs. (Id.) Nevertheless, ALJ Strauss decided to limit Scandone to light and sedentary work, but not highly skilled or detailed work. (Id. 51-52.) Instead, she could only perform semi-skilled and unskilled work. (Id. 52.) Despite these restrictions, ALJ Strauss concluded Scandone could still perform her relevant past work as a retail sales clerk, receptionist, and administrative clerk. (Id. 53.) Accordingly, she was not disabled as of September 2000. (Id.)

The Appeals Council approved the decision (id. 173-75), but on request for review to the this Court, Judge Brody again found several errors in the decision and remanded to the Commissioner (id. 24). This time, Judge Brody adopted and approved Magistrate Judge Welsh's report and recommendation which thoroughly reviewed ALJ Strauss's decision. (Id. 54; see id. 55-71.) Judge Welsh found several errors in ALJ Strauss's decision: she failed to consider the Daily Activities Questionnaire submitted by Scandone's friend, Virginia Greenwood, which corroborates Scandone's credibility; she failed to consider whether Dr. Christos Eleftherios's finding of "fair" mental functioning established a severe impairment; and she failed to consider corresponding mental limitations in her RFC assessment because of the latter error. (Id. 61-64, 68-70.) Judge Welsh took no exception to the other issues raised in Scandone's request for review. (See id. 60-61, 64-68.)

The Appeals Council decided to consolidate Scandone's two applications for purposes of re-hearing in front of an ALJ. Thus, after two remands from the Eastern District, the assigned ALJ would consider the five issues raised in the two decisions: (1) the opinion of Dr. Griffin; (2) the testimony of Blaine Packer; (3) Virginia Greenwood's Daily Activities Questionnaire; (4) whether Scandone has a severe mental impairment pursuant to Dr. Eleftherios's findings; and (5) Scandone's capacity to understand and execute instructions and to respond appropriately to supervision, co-workers, and work pressure.

Judge Strauss issued another decision on June 18, 2005, which was partially in Scandone's favor. (Id. 75-86.) ALJ Strauss concluded Scandone was disabled as of April 1, 2004, but not before. (Id. 85.) Scandone again requested review by this Court. (Compl.) The undersigned remanded this matter pursuant to the Commissioner's request because the SSA was unable to locate the tape of the hearing preceding the June 2005 decision.(Mem., ECF No. 12 at 1.) Without the tape, the Commissioner could not complete the administrative record.*fn3 (See id.)

The undersigned "remanded to the Commissioner for further administrative proceedings, but the determination that [Scandone] has been disabled since April 1, 2004 [was not] subject to de novo adjudication." (Id. at 5.)

On remand once more, ALJ Newberger held an abbreviated hearing in April 2007 (A.R. 578-606), but then ALJ Moskal took over the case and held yet another hearing in Philadelphia, Pennsylvania on June 7, 2007 (id. 607-28). Scandone testified that she gets "increasingly worn down, like more fatigued, more pain, more mental fog, and [she] start[s] to fail" at her jobs. (Id. 615.) Scandone also explained that she pursued employment when forced to do so, either after a divorce or because her church believed she was able to work. (See id. 613, 618-19, 621.)

The vocational expert ("VE") then testified and identified Scandone's past relevant work as office manager, sales clerk, and receptionist. (Id. 624.) Office manager is sedentary, skilled work; sales clerk is light, semi-skilled work; and receptionist is sedentary, semi-skilled work. (Id.) The VE testified that if limited to sedentary, unskilled work, with no public contact, Scandone would be able to perform jobs in the regional and national economy, such as assembler of optical goods, table worker, and masker. (Id. 626-27.) Scandone's attorney did not modify the hypothetical or ask the VE any other questions. (Id. 627.)

On June 23, 2007, ALJ Moskal issued her decision denying Scandone's claim for benefits. (Id. 8-20.) ALJ Moskal concluded that Scandone was disabled as of July 18, 2003, but not before because she was capable of performing sedentary, unskilled work with no public contact despite her physical and mental limitations. (Id. 10.) ALJ Moskal began her analysis by considering the five issues raised in the two prior District Court decisions. She found Dr. Griffin's report was not entitled to significant weight because he conducted one examination, had no treating relationship with Scandone, did not review objective medical records or Scandone's work history, and his findings were undermined by the fact that Scandone engaged in gainful employment within months of the report. (Id. 12-13.)

As for the lay witness evidence, ALJ Moskal found Packer's testimony inconsistent with Greenwood's Questionnaire and in conflict with the fact that Scandone worked during some of time period about which Packer testified. (Id. 13-14.) She also found Greenwood's Questionnaire not entitled to significant weight with regard to Scandone's claim of depression because it was inconsistent with the medical record of the same period. (Id. 14.) ALJ Moskal also opined that Greenwood might have exaggerated her responses in favor of her friend. (Id.)

ALJ Moskal then accepted that Dr. Eleftherios's opinion establishes a severe mental impairment, but that his findings nonetheless reveal Scandone can engage in unskilled work that requires simple one to two step tasks and does not require contact with the public. (Id. 14-15.) Finally, she concluded, based on the entire record, including prior hearings, Scandone can understand, remember, and execute short, simple instructions required for unskilled work, but without contact with the public. (Id. 15.)

Based on a review of the record, and after considering the issues raised in the District Court decisions, ALJ Moskal concluded Scandone suffers from several severe impairments: fibromyalgia, cystitis, chronic fatigue, and depression. (Id.) But these impairments, individually and in combination, do not meet or medically equal the listed impairments. (See id. 15-16.) Although Scandone is somewhat limited in her functional capacity because of these impairments, ALJ Moskal concluded that her "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely credible." (Id. 17.) ALJ Moskal noted she relied on the evidence of record, and considered all of Scandone's claimed symptoms (id. 16-17), but she reached her ultimate conclusion primarily based on Scandone's employment history (see id. 17). ALJ Moskal determined that Scandone is able to work when she is economically required to do so, but that she is limited to sedentary, unskilled work with no public contact. (Id.)

In light of these limitations, Scandone is not able to perform past relevant work and "prior to July 18, 2003, [Scandone] was capable of making a successful adjustment to work that existed in significant numbers in the national economy. A finding of 'not disabled' is therefore appropriate." (Id. 18-19.) As of July 18, 2003, Scandone's age category changed. (Id.) Considering the change in her age category, ...


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