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Decker v. Colvin

United States District Court, M.D. Pennsylvania

June 22, 2015

ANGELA A. DECKER, Plaintiff
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant

MEMORANDUM

KANE JUDGE

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Angela A. Decker’s claim for social security disability insurance benefits and supplemental security income benefits. For the reasons that follow, the Court will affirm the Commissioner’s decision.

I. BACKGROUND

On January 12, 2012, Decker filed protectively[1] an application for disability insurance benefits and an application for supplemental security income benefits. Tr. 12, 198, 208-216 and 222.[2] The applications were initially denied by the Bureau of Disability Determination[3] on April 10, 2012. Tr. 12 and 133-142. On April 26, 2012, Decker requested a hearing before an administrative law judge (“ALJ”) which was held on August 9, 2013. Tr. 12, 31-104 and 143-144. Decker was represented by counsel at the hearing. Id. Decker alleged that she became disabled on November 15, 2010, because of hapatitis C, fibromyalgia, [4] severe depression, chronic fatigue, high blood pressure and obesity.[5] Tr. 133, 208, 210 and 226. At the administrative hearing Decker amended her alleged disability onset date to January 1, 2012. Tr. 41. The record reveals that Decker worked full-time through November 15, 2011. Tr. 36-37, 226-227 and 263.

On August 22, 2013, the ALJ issued a decision denying Decker’s applications. Tr. 12-25. As will be explained in more detail infra the ALJ found that Decker failed to prove that she met the requirements of a listed impairment or suffered from work-preclusive functional limitations. Id. Instead the ALJ found that Decker had the ability to perform a limited range of light work with a sit/stand option as needed and based on the testimony of a vocational expert identified three job which Decker could perform. Tr. 17-18, 24 and 96-100. On October 1, 2013, Decker filed a request for review with the Appeals Council and on April 10, 2014, the Appeals Council concluded that there was no basis upon which to grant Decker’s request for review. Tr. 1-3 and 7-8. Thus, the ALJ’s decision stood as the final decision of the Commissioner.

Decker then filed a complaint in this court on June 4, 2014. Supporting and opposing briefs were submitted and the appeal[6]became ripe for disposition on October 28, 2014, when Decker filed a reply brief.

Decker was born in the United States on January 3, 1972, and at all times relevant to this matter was considered a “younger individual”[7] whose age would not seriously impact her ability to adjust to other work. 20 C.F.R. §§ 404.1563(c) and 416.963(c). Tr. 39, 131-132, 208 and 210.

Decker graduated from high school in 1990 and can read, write, speak and understand the English language and perform basic mathematical functions such as counting change and handling a savings account. Tr. 225, 239 and 458. During her elementary and secondary schooling, Decker attended regular education classes. Tr. 227.

Decker’s work history covers 22 years and at least 16 different employers. Tr. 199, 202-204 and 207. The records of the Social Security Administration reveal that Decker had earnings in the years 1988 through 1996 and 1999 through 2011. Tr. 199.

Decker’s annual earnings range from a low of $96.88 in 1996 to a high of $17, 128.22 in 1994. Id. After 2000, Decker’s annual earning never rose above $16, 351.34 or fell below $5359.96. Id. Decker’s total earnings were $194, 046.34. Id.

After high school Decker for approximately 4 years worked for several different employers, including a nursing home. Tr. 458. Decker then trained to become a medical assistant at Medix School in Towson, Maryland, and then in 1998 or 2000[8] completed a two-year program in business management at Yorktowne Business Institute, York, Pennsylvania. Tr. 45, 227 and 458. Decker from 2001 to 2003 was employed by an automobile dealership performing clerical and accounting duties. Id. Decker was married twice and her first husband died in or about 2003 from AIDS and hepatitis C. Tr. 457-458 and 570. After her first husband died, Decker worked at a foundry for about a year and then from August of 2004 to September, 2007, she worked at a pharmacy as a cashier or technician. Tr. 202, 227 and 458. From March, 2008 to mid-November, 2011, Decker primarily performed work, including cleaning, through temporary employment agencies. Tr. 227 and 458. Decker reported that the last work she performed was 10 hours per day, 4 days per week, at a factory through a temporary employment agency. Tr. 227.

A vocational expert identified Decker’s prior work as (1) a parts picker where she would pick parts for assembly at a motorcycle manufacturer which was described as unskilled, medium work; (2) a commercial or industrial cleaner described as heavy, unskilled work; (3) a sales clerk described as semi-skilled, light work; (4) a pharmacy technician described as semi-skilled, light work; (5) a cashier described as unskilled, light work; (6) an accounting clerk described as skilled, sedentary work; (7) a cook helper described as unskilled, medium work; (8) a mail sorter described as unskilled, light work; and (9) a nursing assistant which was not described with respect to skill or exertional level.[9] Tr. 92 and 94-95. The administrative law judge found that the only positions identified by the vocational expert which qualified as past relevant employment were the commercial or industrial cleaner, sales clerk, pharmacy technician, cashier and mail sorter.[10] Tr. 96-97.

Decker is married but is separated from her husband and lives with her daughter and son in a two-story house; she is able to take care of her personal needs, such as feeding and dressing herself, except she stated that she “sometimes” has difficulty brushing her hair and her daughter assists her with that task; she is able to prepare simple meals and she prepares full meals 3 to 4 times per month; she drives her son to work everyday; she helps babysit her two grandchildren twice a week; she helps with the laundry by folding clothes; she performs simple housework such as dusting and sweeping and washing the dishes; she occasionally goes shopping with her daughter for clothes; she walks 1 ½ blocks three times per week for exercise; she feeds and takes care of her dogs at her house and drives approximately 3 miles to and spends time at her husband’s house feeding his cats; she goes shopping for groceries once per month; her hobbies include putting puzzles together and reading books; she reported no problems getting along with others and occasionally visiting with family members; she reported playing video games and games on her cell-phone; she reported no difficulty squatting, kneeling, talking, hearing, seeing, understanding, following written or spoken instructions and using her hands; she does not need reminders to address her personal hygiene needs or to go places; she has no difficulty finishing what she starts; she can handle stress and changes to her routine and is able to walk for an hour before needing to rest; and she is able to handle a savings account and use a checkbook and money orders Tr. 39-40, 46, 50-52, 56, 64-65 and 236-243.

Decker smokes 1 pack of cigarettes per day and has a substantial history of abusing alcohol and controlled substances, including cocaine, marijuana and LSD. Tr. 368-369, 457-458 and 570. In March, 2012, Decker reported binging on alcohol “about once a month where she will have a bottle of wine or whisky and get drunk” but that she stopped using illicit drugs when she was 18 years old. Tr. 458. Also, in July, 2012, Decker stated that she “drinks [alcohol] in excess about twice a month.” Tr. 570. At the administrative hearing in August, 2013, Decker testified that she stopped drinking alcohol when she started taking medication for diabetes about “seven or eight months” prior to the hearing but admitted “one like night where I was drinking since then.” Tr. 68.

Decker argues that (1) the ALJ erred at step 3 of the sequential evaluation process by finding that Decker’s impairments did not meet Listing 12.04, Affective Disorders; (2) the ALJ erred by failing to give appropriate weight to the opinion of Decker’s treating physician and the opinion of a consultative psychologist; (3) the ALJ failed to properly evaluate Decker’s fibromyalgia and credibility; and (4) substantial evidence does not support the ALJ’s step 5 determination.

II. STANDARD OF REVIEW

A trial court has plenary review of all legal issues decided by the Commissioner. Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007). The trial court’s review of any findings of fact, however, is limited to whether those findings are supported by “substantial evidence.” Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). The substantial evidence standard is highly deferential, and is satisfied with “more than a mere scintilla” of evidence. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)(internal citation omitted). “Where the ALJ’s findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). Substantial evidence “does not mean a large or considerable amount of evidence, ” but rather “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988)(quotation omitted). Substantial evidence exists only “in relationship to all the other evidence in the record, ” see Cotter v. Harris, 642 F.2d 700. 704 (3d Cir. 1981), and therefore a court reviewing the Commissioner’s decision must scrutinize the record as a whole, including whether the Commissioner adequately developed the record. Shaw v. Chater, 21 F.3d 126, 131 (2d Cir. 2000).

To receive disability benefits, the plaintiff 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. § 432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such 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. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. § 423(d)(2)(A).

The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant, first, is engaging in substantial gainful activity; second, has an impairment that is severe or a combination of impairments that is severe; third, has an impairment or combination of impairments that meets or equals the requirements of a listed impairment; fourth, has the residual functional capacity to return to his or her past work; and, if not, fifth, whether he or she can perform other work in the national economy. Id. Four the purposes of this determination, residual functional capacity is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Titles 11 and XVI: Assessing Residual Functional Capacity in Initial Claims, 61 Fed.Reg. 34475 (July 2, 1996). The residual functional capacity assessment must include a discussion of the individual’s abilities. Id.; 20 C.F.R. § 404.1545; see Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (noting that residual functional capacity is “defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).”).

III. DISCUSSION

The ALJ at step one of the sequential evaluation process found that Decker had not engaged in any substantial gainful activity since January 1, 2012, the amended alleged disability onset date. Tr. 14.

At step two of the sequential evaluation process, the ALJ found that Decker had the following severe impairments: “Morbid Obesity, Lumbar Degenerative Disc Disease, Fibromyalgia, Hepatitis C, Mood Disorder, and Anxiety[].” Id. The ALJ found that Decker suffered from migraine headaches, diabetes, restless leg syndrome, high blood pressure and a history of substance abuse but that those conditions were non-severe impairments because they did not have more than a minimal impact on Decker’s ability to sustain continuous work activity. Tr. 15. The ALJ noted that Decker’s diabetes, restless leg syndrome and hypertension were well-controlled; the medical records did not substantiate ongoing complaints of disabling migraine headaches or treatment for them; and Decker’s history of polysubstance abuse was in sustained partial remission. Id.

At step three of the sequential evaluation process the ALJ found that Decker’s impairments did not individually or in combination meet or equal a listed impairment. Id. In so doing the ALJ reviewed, inter alia, the mental health Listing 12.04, and found that Decker had moderate restrictions with activities of daily living, moderate difficulties with social functioning and no difficulties with concentration, persistence and pace, and no episodes of decompensation of an extended duration. Tr. 16. The ALJ further indicated that his assessment of those factors was not a residual functional capacity assessment and was only with respect to the severity of the mental impairments at steps 2 and 3 of the sequential evaluation process and that his assessment of Decker’s residual functional capacity at step four of the sequential evaluation process would be more detailed and reflect Decker’s limitations in activities of daily living, social functioning and concentration, persistence and pace.

At step four of the sequential evaluation process the ALJ found that Decker could not perform her past relevant employment as a commercial or industrial cleaner, sales clerk, pharmacy technician, cashier and mail sorter but that she had the residual functional capacity to perform a limited range of unskilled, light work. Tr. 17 and 23. Specifically, the ALJ found that Decker requires the ability to alternate between sitting and standing positions as needed; she cannot perform overhead reaching, crawling, or climbing of ladders, ropes and scaffolds; she can only occasionally crouch, stoop, and climb ramps and stairs; she is able to tolerate moderate exposure to fumes and hot temperatures; she can only occasionally look downward; she is limited to unskilled work with General Educational Development codes of 1 or 2;[11] and she can only have occasional interaction with supervisors, co-workers, and the public. Tr. 17-18. In setting this residual functional capacity, the ALJ considered Decker’s credibility, past work and her activities of daily living, the records of the treating medical and mental health providers, and the opinions of the state agency psychologists and physicians who evaluated Decker.[12] Tr. 17-23. The ALJ also found that Decker’s statements concerning the intensity, persistence and limiting effects of her impairments were not credible to the extent that they were inconsistent with her ability to engage in the work as described above. Tr. 18.

Based on the above residual functional capacity and the testimony of a vocational expert the ALJ found at step five of the sequential evaluation process that Decker could perform three unskilled, light work positions which provided for the ability to alternate between sitting and standing as needed and that there were a significant number of such jobs in the national economy. Tr. 24. The positions identified by the vocational expert were a cleaner-housekeeper, sorter-agriculture, and assembler-electrical accessories. Id. The vocational expert testified that these positions were in the unskilled category and consistent with the residual functional capacity set by the ALJ. Tr. 62-65. The vocational expert specifically indicated ...


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