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Ibis Oliva v. Michael J. Astrue Commissioner of Social Security

August 30, 2011


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


In this social security case, Ibis Oliva requests review of the Administrative Law Judge's ("ALJ") decision to deny her benefits. She asserts three grounds for remand of the ALJ's decision: (1) the ALJ's decision that her depressive disorders are not per se disabling under Section 12.04 is not supported by substantial evidence; (2) the ALJ erred in rejecting the opinion of her treating therapist; and, (3) the hypothetical posed to the vocational expert failed to include all the limitations the ALJ had found.

At the time of the ALJ's decision, Oliva was a 37 year old Cuban immigrant. She arrived in the United States as a teenager with a depressive disorder following a period of sexual abuse. On October 12, 2006, she filed for supplemental security income under Title XVI of the Social Security Act claiming that a significant mental impairment limited her ability to maintain gainful employment. The ALJ determined that Oliva suffered from a severe impairment, a major depressive disorder; but this impairment neither constituted a per se disability under Section 12.04 nor limited her residual functional capacity ("RFC") to perform her past work.

Standard of Review

On judicial review, the court determines whether the Commissioner's decision is supported by substantial evidence. 42 U.S.C. §§ 405(g); 1383(c)(3); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence is "'more than a mere scintilla'; it means 'such relevant evidence as a reasonable mind might accept as adequate.'" Thomas v. Comm'r of Soc. Sec. Admin., 625 F.3d 798, 800 (3d Cir. 2010) (quoting Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). The examination for substantial evidence "'is not merely a quantitative exercise.'" Lozada v. Barnhart, 331 F. Supp. 2d 325, 328 (E.D. Pa. 2004) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).

To facilitate meaningful judicial review, the "'administrative decision should be accompanied by a clear and satisfactory explication of the basis on which it rests.'" Barren Creek Coal Co. v. Witmer, 111 F.3d 352, 355 (3d Cir. 1997) (quoting Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981)). Thus, the ALJ must "discuss 'the evidence he considered which supports the result' and 'the evidence which was rejected . . . and should give his reasons for accepting only some evidence while rejecting other evidence.'" Becker v. Comm'r of Soc. Sec. Admin., No. 10-2517, 2010 WL 5078238, at *5 (3d Cir. Dec. 14, 2010) (quoting Cotter, 642 F.2d at 705).


To qualify for SSI benefits, a claimant must demonstrate that she cannot engage in substantial gainful activity because of a medically determinable physical or mental impairment that 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). A claimant is considered unable to engage in substantial gainful activity if her "physical or mental impairment or impairmentsare of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

Review of an SSI claim involves a five-step sequential analysis. 20 C.F.R. § 416.920. The ALJ must first determine whether the claimant is engaged in substantial gainful activity. If she is not, the ALJ next decides whether the claimant suffers from a severe impairment or a combination of impairments that is severe. If so, the ALJ evaluates 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, resulting in a presumption of disability. If the claimant's impairment does not meet or equal the criteria for a listed impairment, the ALJ must determine whether, despite her impairment, the claimant retains the RFC to perform her past work. If the claimant cannot perform her past work, the ALJ must then decide whether she can perform any other work that exists in the national economy. 20 C.F.R. § 416.920(a)(4); Allen v. Barnhart, 417 F.3d 396, 401 n.2 (3d Cir. 2005).

Listing 12.04 Affective Disorder Disability

Oliva's first challenge is to the ALJ's determination at step three that her impairment did not meet the diagnostic criteria of Listing 12.04 to be considered a per se disability. Listing 12.04 sets forth the requirements for establishing a per se affective disorder disability. It reads:

12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.

The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.*fn1 . . .

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration;


C. Medically documented history of chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or

3. Current history of one of more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

20 C.F.R. § 404, subpt. P., App. 1, § 12.04.

1. Activities of Daily living include adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office. In the context of your overall situation, we assess the quality of these activities by their independence, appropriateness, effectiveness, and sustainability. We will determine the ...

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