Colavito v. Apfel, Civil Action No. 99-854.

• Decision Date: 21 October 1999
• Docket Number: Civil Action No. 99-854.
• Parties: Donna L. COLAVITO v. Kenneth S. APFEL, Commissioner of the Social Security Administration.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 385

75 F.Supp.2d 385

Donna L. COLAVITO v. Kenneth S. APFEL, Commissioner of the Social Security Administration.

Civil Action No. 99-854.

United States District Court, E.D. Pennsylvania.

October 21, 1999.

Meyer Silver, Silver & Silver, Ardmore, PA, for Plaintiff.

William B. Reeser, Social Sec. Admin., Region III, Rafael Melendez, Social Sec. Admin., Office of General Counsel, Philadelphia, PA, for Defendant.

MEMORANDUM AND ORDER

BECHTLE, District Judge.

Presently before the court are plaintiff Donna L. Colavito's ("Plaintiff") Objections to the Magistrate Judge's Report and Recommendation. For the reasons set forth below, the court will approve and adopt the Report and Recommendation.

I. BACKGROUND

This is a judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's claim for supplemental security income ("SSI") under Title XVI of the Social Security Act.

Plaintiff was born on October 20, 1948 and was forty-eight years old at the time of the hearing before the Administrative Law Judge on June 27, 1996. (R. at 35 & 40.) Plaintiff's education terminated in the tenth grade. (R. at 40-41.) Plaintiff testified that she attended special education classes and that she had not worked in the fifteen years prior to the hearing.¹ (R. at 40-42.)

Plaintiff asserted that she suffers from depression, heart palpitations and back conditions including arthritis and degenerative disc disease.² (R. at 44.) On September 19, 1994, Plaintiff filed for SSI, alleging a disability that began on May 18, 1989. (R. at 17-18, 68 & 114) This claim was denied initially and again upon reconsideration. On June 27, 1996, Plaintiff testified at a hearing before Administrative Law Judge Hazel C. Strauss (the "ALJ"). A vocational expert ("VE") also testified at Plaintiff's hearing. (R. at 56-62.) On September 19, 1997, the ALJ found that Plaintiff had not been under a disability as defined by the Social Security Act at any time through the date of the decision. (R. at 27.) In her decision denying Plaintiff benefits, the ALJ found that Plaintiff could perform simple one-to-two step jobs that are low stress and do not deal with the public, including: janitress and hotel maid or packer at the light and medium exertional levels.³ (R. at 26-27.) On July 27, 1999, United States Magistrate Judge Peter B. Scuderi ("Magistrate Judge") issued a Report and Recommendation finding that substantial evidence existed to support the ALJ's findings. On August 9, 1999, Plaintiff filed Objections to the Magistrate Judge's Report and Recommendation.

II. LEGAL STANDARD

Judicial review of administrative decisions is limited. The court may not reweigh the evidence. The court determines only whether the Commissioner's decision is supported by substantial evidence. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.1986) (citations omitted). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.1987). Findings of fact made by an ALJ must be accepted as conclusive provided that they are supported by substantial evidence. 42 U.S.C. § 405(g). In reviewing a decision of the ALJ, the court "need[s] from the ALJ not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected." Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981) (remanding case back to Secretary of Health and Human Services where ALJ failed to explain implicit rejection of expert medical testimony that was probative and supportive of disability claimant's position). The Third Circuit has recognized that "there is a particularly acute need for some explanation by the ALJ when s/he has rejected relevant evidence or when there is conflicting probative evidence in the record." Id. at 706. The court reviews de novo the portions of the Magistrate Judge's Report and Recommendation to which objections are filed. 28 U.S.C. § 636(b)(1)(C).

III. DISCUSSION

To receive disability insurance benefits, a claimant must show that he or she is unable 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.... [The impairment must be so severe that the claimant] 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.

42 U.S.C. §§ 423(d)(1)(A) & (d)(2)(A).

An ALJ considering a claim for disability insurance benefits undertakes the five-step sequential evaluation of disability claims set forth in 20 C.F.R. § 404.1520. Under Step One, if the claimant is working and the work constitutes substantial gainful activity, the ALJ must find that the claimant is not disabled regardless of medical condition, age, education or work experience. 20 C.F.R. § 404.1520(b). Under Step Two, the ALJ determines whether the claimant has a severe impairment which significantly limits his or her physical or mental ability to do basic work activity. 20 C.F.R. § 404.1520(c). Under Step Three, the ALJ must determine whether the claimant's impairment meets or equals the criteria for a listed impairment as set forth in 20 C.F.R. pt. 404, subpt. 4, Appendix 1. 20 C.F.R. § 404.1520(d). Under Step Four, if the ALJ finds that the claimant retains the residual functional capacity to perform past relevant work, the claimant will not be found to be disabled. 20 C.F.R. § 404.1520(e). Under Step Five, other factors, including the claimant's residual functional capacity, age, education and past work experience must be considered to determine if the claimant can perform other work in the national economy. 20 C.F.R. § 404.1520(f).

Plaintiff asserts two principal grounds on which the Magistrate Judge's and the ALJ's findings are not supported by substantial evidence. First, Plaintiff asserts that the Magistrate Judge improperly rejected the medical opinions of Dr. Misook Soh, M.D., Plaintiff's treating psychiatrist. Second, Plaintiff argues that the VE's hypothetical did not include all of her impairments. The court will review each argument separately.

A. Dr. Soh's Opinion

Plaintiff's principal objection revolves around evidence of the purported findings of a person identified as Dr. Misook Soh, M.D., and claimed by Plaintiff to be one of her treating physicians. Dr. Soh did not testify at the hearing.

Documents claimed by Plaintiff's counsel at the hearing to be the reports of Dr. Soh were submitted in support of Plaintiff's claim. (R. at 155, 216 & 233.) The ALJ was skeptical about the genuineness of certain of the reports that were submitted, and her observations in that regard are set forth in her decision.⁴ (R. at 21-22.) In addition to her concerns regarding the authenticity of the reports, the ALJ was not satisfied with the content of the documents because some were essentially "check off" forms filled in by someone that may, or may not have been, Dr. Soh. (R. at 216.) Some of Plaintiff's records were filled in by her social worker, Virginia W. Dryer, and signed off by Dr. Soh. (R. at 151, 186-192 & 219-224.) Under the regulations, a social worker's opinion is not listed as an "acceptable medical source." See 20 C.F.R. § 416.913(a) (listing acceptable medical sources); Lee v. Sullivan 945 F.2d 687, 691 (4th Cir.1991)(finding that chiropractor is not "acceptable medical source" under 20 C.F.R. § 416.913(a), and therefore is not qualified to make medical assessment).

The ALJ provided Plaintiff's counsel at the hearing with an opportunity to supplement Plaintiff's deficient medical records with the original medical and laboratory notes. (R. at 22 fn.1 & 55.) Such treatment records are customarily expected and are provided to support cursory forms that often do little more than inform the reader of pre-printed terms of a medical diagnosis. Cf. 20 C.F.R. § 404.1527(d)(2)(stating that to receive controlling weight, treating source's opinion must be "well-supported by medically acceptable clinical and laboratory diagnostic techniques and ... not inconsistent with the other substantial evidence"); § 416.927(d)(2)(same); Santise vs. Schweiker, 676 F.2d 925, 932-933 (3d Cir.1982)(recognizing authority of Secretary of Health and Human Services to "establish regulations governing determinations of disability" and "adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits") (internal quotations omitted); Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.1993)(finding that forms requiring physician only to check boxes or fill in blanks are "weak evidence at best" and that when such forms are unaccompanied by thorough written reports, "their reliability is suspect")(internal quotations omitted). Plaintiff's counsel at the hearing accepted the ALJ's offer to supply Plaintiff's medical records, but failed to do so. Substitute counsel, who is Plaintiff's current counsel before the court and represented Plaintiff before the Appeals Council, also failed to supply the requested documentation. Indeed, even throughout the proceedings in this court, the material has not been provided. The court agrees with the United States Magistrate Judge that the ALJ, as well as the Appeals Council, were wholly justified in not giving the weight to Plaintiff's medical documents that Plaintiff believes they deserve. See Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir.1990)(recognizing that court may accept credibility findings of ALJ).

Plaintiff also objects on the ground that the record was not fully developed as is required when benefits...