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Locke v. Colvin

United States District Court, M.D. Pennsylvania

September 30, 2014

JENNIFER L. LOCKE, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM Docs. 1, 10, 11, 12, 13, 14, 15

GERALD B. COHN, Magistrate Judge.

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying the application of Plaintiff Jennifer Locke for supplemental security income ("SSI") and disability insurance benefits ("DIB") under the Social Security Act, 42 U.S.C. §§401-433, 1382-1383 (the "Act"). The ALJ found that Plaintiff could engage in simple, repetitive, routine work in a static work environment with changes in routine that are few and easily explained, limited to occasional, superficial interaction with coworkers and supervisors and no interaction with the public. The ALJ noted that, while Plaintiff needed help two or three days per week, she lived alone with two young children and cared for them by herself on the other days. Plaintiff had maintained a romantic relationship with the father of her children since the seventh grade, could perform activities of daily living, reported that she could handle money, and had worked at various full-time jobs for up to a year.

Plaintiff challenges only three aspects of the ALJ's decision. First, Plaintiff asserts that her borderline intellectual functioning should have been considered a severe impairment at step two. However, the ALJ clearly addressed Plaintiff's intellectual functioning in his RFC assessment, and included significant mental limitations. Thus, any error at step two was harmless. Second, Plaintiff challenges the ALJ's failure to acknowledge a consultative opinion from 2006, three years prior to the alleged onset date and five years prior to her present application. However, the state agency physician in the present case analyzed this opinion, and, while finding it to be not current, noted the IQ tests results contained within it and limited Plaintiff to simple and routine work. The ALJ discussed and partially adopted the state agency physician's opinion, and implicitly adopted his analysis of the 2006 opinion. Moreover, the 2006 opinion indicated extreme limitations, defined as "no ability" to function, in Plaintiff's ability to work in a routine and usual work setting, but Plaintiff withdrew her application a few months later because she was working full-time. Third, Plaintiff asserts that the ALJ failed to address one of her GAF scores. However, an ALJ is not required to discuss every single piece of evidence. While Plaintiff was assessed a GAF score of 50 in March of 2011, she did not seek mental health treatment until June of 2012, and when she sought treatment in June of 2012, she was assessed a GAF score of 60. Every subsequent GAF score that was before the ALJ was either a 55 or a 60. Thus, the ALJ's failure to cite this single piece of evidence does not undermine the substantial evidence that supports his decision. A reasonable mind could accept the evidence cited by the ALJ as adequate to find that Plaintiff could engage in a range of simple, low-stress work, so the Court will affirm the decision of the Commissioner and deny Plaintiff's appeal.

II. Procedural Background

On May 3, 2011, Plaintiff filed an application for SSI under Title XVI of the Act and for DIB under Title II of the Act. (Tr. 209-222). On June 7, 2011, the Bureau of Disability Determination denied these applications (Tr. 75-100), and Plaintiff filed a request for a hearing on August 29, 2011. (Tr. 112-114). On February 19, 2013, an ALJ held a hearing at which Plaintiff-who was represented by an attorney-and a vocational expert ("VE") appeared and testified. (Tr. 41-71). On April 5, 2013, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 7-18). On April 5, 2013, Plaintiff filed a request for review with the Appeals Council (Tr. 6), which the Appeals Council denied on June 13, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-5).

On July 10, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On November 20, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 10, 11). On December 19, 2013, Plaintiff filed a brief in support of her appeal and a statement of material facts ("Pl. Brief"). (Doc. 12, 13). On February 23, 2014, Defendant filed a brief and statement of facts in response ("Def. Brief"). (Doc. 14, 15). On April 29, 2014, the Court referred this case to the undersigned Magistrate Judge. Both parties consented to the referral of this case for adjudication to the undersigned on June 19, 2014, and an order referring the case to the undersigned for adjudication was entered on June 19, 2014. (Doc. 17).

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. Johnson v. Commissioner of Social Sec. , 529 F.3d 198, 200 (3d Cir. 2008); Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988). Substantial evidence is a deferential standard of review. See Jones v. Barnhart , 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence "does not mean a large or considerable amount of evidence." Pierce v. Underwood , 487 U.S. 552, 564 (1988). Substantial evidence requires only "more than a mere scintilla" of evidence, Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999), and may be less than a preponderance. Jones , 364 F.3d at 503. If a "reasonable mind might accept the relevant evidence as adequate" to support a conclusion reached by the Commissioner, then the Commissioner's determination is supported by substantial evidence. Monsour Med. Ctr. v. Heckler , 806 F.2d 1185, 1190 (3d Cir. 1986); Hartranft v. Apfel , 181 F.3d 358, 360 (3d Cir. 1999); Johnson , 529 F.3d at 200.

IV. Sequential Evaluation Process

To receive disability or supplemental security benefits, a claimant must demonstrate an "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." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits show that he has a physical or mental impairment of such a severity that:

He is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520; see also Plummer , 186 F.3d at 428. If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed. See 20 C.F.R. § 404.1520. The Commissioner must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment from 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e).

The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala , 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

V. Relevant Facts in the Record

Plaintiff was born on October 31, 1986 and was classified by the regulations as a younger individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 209). She has a limited education and past relevant work as a material handler, a train cleaner, a cashier, and a warehouse worker. (Tr. 16).

Plaintiff's school records indicated that standardized tests showed that, in February of 2004, Plaintiff could read at a sixth grade level. (Tr. 314). Her word accuracy on graded passages ranged from 92-95% and her comprehension ranged from 55% to 100%. (Tr. 315). On standardized tests that assess math computation without the aid of a calculator, Plaintiff tested at a 6.5 grade level. (Tr. 315). Her individualized education plan noted that Plaintiff "can progress in the general education curriculum with accommodation and adaptations. [Plaintiff] is motivated to be successful in school. When she reads, she uses context clues to help her decode unfamiliar reading. [Plaintiff] needs to increase her reading, written language, and math skills." (Tr. 315). It indicated that she was interested in joining the military after high school and that her interests include tattooing, four-wheeling, swimming, fishing, hunting, roller blading, and x-games biking. (Tr. 315). Accommodations included the use of a learning classroom to read tests orally, allow her to use a computer for writing/editing, use a Franklin Speller in the classroom, provide extended time for quizzes and tests, and provide a word bank for all fill-in-the blank complete questions. (Tr. 319). The IEP team determined that Plaintiff did not need an extended school year. (Tr. 321). Plaintiff withdrew from school in April of 2004, her eleventh grade year. (Tr. 311).

Plaintiff became pregnant with her first child around January of 2006. (Tr. 462). She filed her first application for benefits on March 27, 2006 (Tr. 74). As part of the previous determination, she was evaluated by Dr. Edward Yelinek, Ph.D. on July 6, 2006. (Tr. 338). She entered her exam with Dr. Yelinek stating "it's a hot muggy day and I'm pregnant." (Tr. 338). She was nineteen years old at the time. (Tr. 338). She indicated that, six months earlier, after a customer complained about an order at the restaurant she worked, she "told [her] mom to come pick [her] up or [she] was going to drive [her] car into a tree." (Tr. 338). Her mother took her to the emergency room, where she calmed down after two hours. (Tr. 338). She explained that she was treating with Dr. Joseph Stewart, D.O., and had been taking lithium and Prozac until she got pregnant. (Tr. 319). She admitted to fairly heavy use of marijuana, "about three times each day for a long time, " until she got pregnant. (Tr. 339). She indicated that, over the last six months, she had been living with her parents and cleaning their house, and they seemed to approve of the job she was doing. (Tr. 339). She was angry, anxious, depressed, and had a surly demeanor. (Tr. 340). She indicated poor sleep and poor appetite but good energy. (Tr. 340). She had a good group of friends with whom she associates. (Tr. 340).

Plaintiff's fund of information was poor. She did not know the number of weeks in a year, know the direction the sun rose, and could not perform serial sevens. She could not spell the word world backwards and her attention and concentration were poor. (Tr. 340). "Her ability to perform simple arithmetic calculations remains intact." (Tr. 340). Her range of concept formation was "fairly concrete." (Tr. 340). Her perceptions were intact; there was no evidence of hallucination, obsession, delusion, compulsion, or unusually fears (Tr. 340). Her thought processes appeared goal directed and her memory was intact. (Tr. 340). Her social judgment was poor but her tested judgment was intact. Plaintiff had a full scale IQ of 74, which was in the range of borderline intellectual functioning and the represented the fourth percentile. (Tr. 342). He diagnosed her with Bipolar II Disorder, Borderline Intellectual Functioning, Rule Out Borderline Personality Disorder, and assessed her to have a GAF of 45. (Tr. 342). He opined that she would need assistance managing funds awarded to her, and opined that her prognosis was guarded. (Tr. 342). He opined that she had moderate limitations in her ability to understand, remember, and carry out short instructions and interact with the public. (Tr. 344). He opined that she had marked limitations in her ability to understand, remember, and carry out detailed instructions, make judgments on simple, work-related decisions, and interact appropriately with supervisors and coworkers. (Tr. 344). He opined that she had extreme limitations in her ability to respond appropriately to work pressures in a usual work setting or respond appropriately to changes in a routine work setting. (Tr. 344). Extreme limitations were defined as "no ability to function" in a given area. (Tr. 344).

However, despite Dr. Yelinek's opinion that Plaintiff had no ability to function in her ability to respond appropriately to usual and routine work settings, Plaintiff withdrew her request for applications on May 17, 2007. An order of dismissal dated May 21, 2007 states:

The claimant contacted this office on May 17, 2007. The claimant asked to withdraw the request for hearing, since she is presently working. The record shows that the claimant was fully advised of the effects of this action, including dismissal of the request for hearing with the result that the reconsideration determination [denying benefits] would remain in effect.

(Tr. 74).

On March 26, 2009, Plaintiff had a positive pregnancy test at Waynesboro Hospital. (Tr. 441). However, no fetal heartbeat was detected, so a follow-up sonogram to determine viability was recommended. (Tr. 441). Plaintiff discontinued her lithium upon learning she was pregnant. (Tr. 459). On April 2, 2009, a follow-up sonogram indicated a fetal heartbeat. (Tr. 438). On June 1, 2009, Plaintiff reported to her gynecologist that she was getting more frustrated at work, but that home was "ok." (Tr. 549). On June 4, 2009, Plaintiff indicated that she was becoming very anxious while working at Save-a-Lot, her ...


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