Opinion
Civil Action No. 02-8322.
March 22, 2004
MEMORANDUM AND ORDER
Plaintiff Gloria Lynn Lilly seeks judicial review of the final decision of the Commissioner of the Social Security Administration, Jo Anne B. Barnhart (the "Commissioner"), denying her claim for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act (the "Act"), 42 U.S.C. § 1381-1383(f). Plaintiff and the Commissioner filed cross motions for summary judgment. The Court designated United States Magistrate Judge Peter B. Scuderi to submit a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B); Local R. Civ. P. 72.1(d)(1)(C).
Magistrate Judge Scuderi has recommended that the Court grant the Commissioner's Motion for Summary Judgment and deny Plaintiff's Motion. Because Plaintiff has objected to the Magistrate Judge's Report and Recommendation, the Court must "make a de novo determination of those portions of the record or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). Having reviewed the Report and Recommendation and Plaintiff's objections thereto, the Court will approve and adopt the Report and Recommendation. I. Procedural History
On August 8, 2000, Plaintiff filed an application for SSI benefits, alleging severe back pain. (R. at 16). The Commissioner denied benefits both initially and upon reconsideration. (R. at 16). At a hearing on October 24, 2001, Administrative Law Judge ("ALJ") Paula Garrety heard testimony from Plaintiff and a vocational expert, Bruce Martin. (R. at 16). In a decision dated December 7, 2001, the ALJ denied Plaintiff's claim for benefits. (R. at 22). On September 13, 2002, the Social Security Appeals Council denied Plaintiff's request for review, making the ALJ's opinion the final decision of the Commissioner. (R. at 6-7). Having exhausted her administrative remedies, Plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's decision.
II. Standard of Review A. The Commissioner's Decision
Judicial review of a Social Security case is based upon the pleadings and the transcript of the record. 42 U.S.C. § 405(g). The scope of the Court's review of the Commissioner's decision is limited to determining whether the Commissioner applied the correct legal standards and whether the record, as a whole, contains substantial evidence to support the Commissioner's findings of fact. Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000);Jeserum v. Sec'y of the United States Dep't of Health Human Servs., 48 F.3d 114, 117 (3d Cir. 1995).
"The Court is bound by the ALJ's findings of fact if they are supported by substantial evidence in the record." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). "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.'" Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988));see also Plummer, 186 F.3d at 427 (noting that "substantial evidence" has been defined as "more than a mere scintilla"). "The court cannot conduct de novo review of the Commissioner's decision or re-weigh the evidence of record." Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D. Pa. 1998).
B. The Magistrate Judge's Report and Recommendation
The Court must review de novo those portions of the Magistrate Judge's Report and Recommendation to which Plaintiff has objected. See 28 U.S.C. § 636(b)(1)(C). The Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate." Id. In considering the Plaintiff's objections to the Report and Recommendation, the Court has independently reviewed the entire record, including the Report and Recommendation, the ALJ's decision, the transcript of the hearing, the hearing exhibits, and the summary judgment briefs.
III. Social Security Law
Title XVI of the Act provides for the payment of disability benefits to indigent persons under the SSI program. 42 U.S.C. § 1382(a). "Disability" is defined as 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." Id. § 1382c(a)(3)(A). The Act further provides:
An 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.Id. § 1382c(a)(3)(B).
The claimant carries the initial burden of proving disability.Plummer, 186 F.3d at 428. When the claimant establishes an inability to perform his or her prior work, the burden then shifts to the Commissioner to show that the claimant can perform other substantial gainful work that exists in the national economy. Id.
Under the Social Security regulations, an application for disability benefits is evaluated according to a five-step sequential process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 416.920. This process requires the presiding ALJ to review: (1) claimant's current work activity; (2) the severity of the impairments; (3) whether the impairments, considered alone or in combination, meet or equal any listing set forth in Part 404, Subpart P, Appendix 1, which would result in a conclusive presumption of disability; (4) whether claimant's residual functional capacity allows him or her to perform his or her past relevant work; and, if not, (5) whether claimant's specific residual functional capacity, in conjunction with a consideration of his or her age, education, and work experience, prevents him or her from performing other work that exists in the national economy. The claimant is entitled to disability benefits only if he or she is not able to perform such other work.
IV. The ALJ's Decision
Using the sequential evaluation process, the ALJ initially found that Plaintiff had satisfied the requirements of step one because she had not engaged in substantial gainful activity since August 8, 2000. (R. at 17). At step two, the ALJ found that Plaintiff suffers from chronic cervical and thoracic sprain, which is severe. (R. at 17). Pursuant to step three, however, the ALJ found that Plaintiff did not qualify for a conclusive presumption of disability because her impairment or combination of impairments did not meet or equal any of those listed in the applicable regulations. (R. at 17). Regarding step four, the ALJ found that Plaintiff had no past relevant work. (R. at 19). Under the fifth and final step, The ALJ found that Plaintiff had exertional limitations but retained the residual functional capacity to perform light work that affords an option to sit and stand at will and is limited to simple, repetitive, one to two-step tasks. (R. at 19). Considering Plaintiff's age, education, relevant work experience, and limitations, and based upon the testimony of the vocational expert, the ALJ determined that Plaintiff could perform a significant number of jobs in the national economy, including cashier, information clerk, and inspector. (R. at 20). Accordingly, the ALJ concluded that Plaintiff was not disabled. (R. at 20).
V. The Magistrate Judge's Report and Recommendation
In his Report and Recommendation, Magistrate Judge Scuderi found that the ALJ's determination of Plaintiff's residual functional capacity was supported by substantial evidence and was correctly determined for the following reasons: (1) the ALJ properly set forth a factual basis for determining that consultative psychological testing was unnecessary; (2) the ALJ provided sufficient reasons for relying on the consultative examiner's finding that Plaintiff's back pain was not completely disabling; and (3) the ALJ set forth a reasoned basis for discrediting some of Plaintiff's subjective complaints of pain.
VI. Analysis
Plaintiff filed two objections to the Report and Recommendation. First, Plaintiff argues that the ALJ erred in failing to order consultative IQ and other psychological testing. Second, she claims that the ALJ improperly relied on the report of Defendant's consultative examiner, Dr. Nosheny, because he failed to refer to Plaintiff's previous medical reports and his conclusion was therefore prejudicial. For the reasons that follow, the Court will overrule Plaintiff's objections.
A. The ALJ's decision not to order psychological testing of Plaintiff
Plaintiff argues that at Step Three of the sequential evaluation process, the ALJ erroneously failed to find that Plaintiff met Listing 12.05C, mental retardation, in part by failing to order a psychological assessment of Plaintiff's current IQ. Listing 12.05C requires:
12.05 Mental retardation: Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A, B, C or D are satisfied.
* * * *
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function.
20 C.F.R. subpt. P, app. 1, Listing 12.05C. Plaintiff bears the burden of proving that her impairments meet or equal a listed impairment. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). Only if the record "fairly raises the question" of equivalence to a Listing is the ALJ required to obtain an updated opinion from a medical expert. Maniaci v. Apfel, 27 F. Supp.2d 554, 557 (E.D. Pa. 1998); see also SSR 96-6p, "Medical Equivalence."
Plaintiff argues that there is sufficient evidence to show that she met the standards for metal retardation before age 22, including the fact that she attended special education classes in school, and that the ALJ erred by failing to consider such evidence and failing to order consultative psychological testing. After reviewing the ALJ's decision and the record, however, the Court concludes that the ALJ did not commit reversible error. In her opinion, the ALJ recognized that there were school records containing a reference to Plaintiff as "borderline MR." (R. at 17). However, the ALJ also noted that these records were more than twenty years old and contained no actual IQ scores or test results. Id. In addition, the ALJ correctly determined that psychological testing conducted now, when Plaintiff is 31 years old, could not establish mental retardation that began in the developmental period. See Williams v. Sullivan, 970 F.2d 1178, 1185 (3d Cir. 1992) (holding that an IQ score obtained after the claimant's twenty-second birthday could not satisfy the longitudinal requirement of Listing 12.05C).
Moreover, it is evident from the record that Plaintiff fails to meet the "deficits in adaptive functioning" requirement of Listing 12.05C. As evidence of deficit, Plaintiff points to her past inability to sustain employment for more than three months. (Pl. Obj. at 4-5). This alone is insufficient to establish a deficit in adaptive functioning. As Magistrate Judge Scuderi points out, "If a poor or non-existent vocational record were deemed sufficient to prove `deficits in adaptive behavior,'" a claimant could satisfy this standard simply by refusing to get or keep a job, a result the Commissioner could not have intended. (Report and Recommendation at 13). In addition, other evidence in the record counsels against such a finding. At her administrative hearing, Plaintiff testified that she is a single mother of three, runs the household, cares for the children, takes public transportation and performs chores, such as laundry and shopping. (R. at 160-162). The Court finds that the ALJ's determinations that Plaintiff did not meet the listing for mental retardation and that consultative psychological testing was unnecessary were supported by substantial evidence in the record. Accordingly, Plaintiff's objection will be overruled. B. The ALJ's reliance on the consultative examiner's evaluation
Plaintiff also objects to the Report and Recommendation on the ground that it ignores the discussion in her brief of several case precedents. All of the cases cited by Plaintiff stand for the proposition that the ALJ has an affirmative duty to develop the record. See, e.g., Sims v. Apfel, 120 S.Ct. 2080 (2000); Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999); Ventura v. Shalala, 55 F.3d 900 (3d Cir. 1995). Nothing in the Magistrate Judge's Report and Recommendation contravenes this principle. The ALJ must examine the evidence of record and make a determination as to whether additional evidence is necessary. In this case, the ALJ found Plaintiff's reliance on one reference from grade school identifying her as "borderline MR" unpersuasive in light of the household duties she regularly performs, and it is not the role of this Court to review that decision de novo or to re-weigh the evidence of record. See Palmer, 995 F. Supp. at 552. The ALJ's decision that there was no cause for further inquiry into Plaintiff's mental abilities is supported by substantial evidence in the record, and, accordingly, that decision stands.
Plaintiff argues that the ALJ improperly gave too much weight to the medical report of Defendant's consultative examiner, Dr. Stanley Nosheny. She maintains that Dr. Nosheny's report is prejudicial because he apparently did not have copies of prior treatment records and test results indicating that Plaintiff suffered from acute lumbar radiculopathy. (Pl. Brief at 21-22). She further alleges that Defendant is responsible for failing to forward these treatment records and test results to the examining physician. Id. at 22. This claim is entirely without merit. First, there is no evidence that Defendant failed to provide the relevant records to the consultative examiner. The mere fact that he did not reference them in his written evaluation does not mean that he did not possess them. Second, Dr. Nosheny conducted a physical examination of Plaintiff and supported his diagnosis of chronic cervical and thoracic sprain with detailed findings. (R. at 131). Finally, the record contains reports from other physicians, including Dr. Glick, Plaintiff's treating physician, who specifically considered the test results diagnosing acute lumbar radiculopathy and did not conclude that Plaintiff was entirely or permanently disabled from work. (R. at 118, 137). For these reasons, the Court finds that the ALJ did not give undue weight to Dr. Nosheny's evaluation, and that her decision to credit Dr. Nosheny's findings was supported by substantial evidence.
Acute lumbar radiculopathy is a disease affecting the nerve roots. (Pl. Brief at 21).
In fact, Dr. Glick's report notes that Plaintiff would be unable to return for additional visits because she had found a job. (R. at 118).
VII. Conclusion
The ALJ's decision to deny Plaintiff benefits is supported by substantial evidence in the record, and Plaintiff's objections to the Magistrate Judge's Report and Recommendation are overruled. Accordingly, Plaintiff's Motion for Summary Judgment will be denied, and the Commissioner's Motion for Summary Judgment will be granted. An appropriate Order follows.
ORDER
AND NOW, this ____ day of March, 2004, the Court having considered the parties' Motions for Summary Judgment and reviewed the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, Plaintiff's Objections, and the entire record, including the ALJ's decision, transcript of the hearing, and hearing exhibits, it is ORDERED that:
1. The Report and Recommendation (docket no. 20) is APPROVED and ADOPTED;
2. Plaintiff's Motion for Summary Judgment (docket no. 16) is DENIED;
3. Defendant's Motion for Summary Judgment (docket no. 17) is GRANTED; and
4. The Clerk of Court shall mark this case CLOSED.