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Tipton v. Massanari

United States District Court, E.D. Virginia
Aug 3, 2001
3:00CV126 (E.D. Va. Aug. 3, 2001)



August 3, 2001


This matter is before the Court on Defendant's Motion for Summary Judgment. Plaintiff Barbara Tipton seeks judicial review of the final decision of the Defendant Commissioner denying her application for a period of disability insurance benefits (DIB) and supplemental security income (SSD pursuant to 42 U.S.C. § 405 (g). The Commissioner's final decision is based on a finding by an Administrative Law Judge (ALJ) that the Plaintiff was not disabled as defined by the Social Security Act and applicable regulations.

Plaintiff has failed to file a motion for summary judgment despite the order of the Court to do so not later than April 11, 2001. (Order of March 22, 2001). Plaintiff was also adequately apprised by the Defendant that she was entitled to file a responsive pleading to its motion for summary judgment pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

For the reasons discussed below, it is the Court's recommendation that the Defendant's Motion for Summary Judgment be DENIED and that the final decision of the Commissioner be VACATED and REMANDED.

Procedural History

The Plaintiff filed applications for DIB and SSI on a protective filing date of May 1, 1997, alleging that she had been disabled since October 23, 1996, due to affective disorder. (R. at 72, 74, 264, 266). Her application was denied initially and on reconsideration. (R. at 73, 75, 265, 267). The Plaintiff timely requested a de novo review and a hearing was conducted by an ALJ (the Honorable Judge R. Davila, Jr.) who denied benefits by an unfavorable decision dated October 28, 1998. (R. at 16, 19-27, 82). The Appeals Council denied review, thus rendering the ALJ's decision that the Plaintiff was not disabled under the Act as the final decision of the Commissioner. (R. at 6-7, 78, 267). The Plaintiff thereafter filed a timely pro se appeal to this Court.

Plaintiff met fully-insured disability status on October 23, 1996, and will continue to do so through December 31, 2001. (R. at 108).


Is the Commissioner of Social Security's decision that the Plaintiff is not entitled to DIB and SSI supported by the application of the correct legal standard and substantial evidence on the record?


In reviewing the decision of the Commissioner to deny benefits, the Court is limited to determining whether the Commissioner's decision was supported by substantial evidence on the record and whether the proper legal standard was applied in evaluating the evidence. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is more than a scintilla, less than a preponderance, and is the kind of relevant evidence a reasonable mind could accept as adequate to support its conclusion. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citingRichardson v. Perales, 402 U.S. 389, 401 (1971); and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).

In order to find whether substantial evidence exists, the Court is required to examine the record as a whole, but may not "undertake to re-weigh the conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In considering the record as a whole, the Court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberner, 493 F.2d 1002, 1007 (4th Cir. 1974). The Commissioner's findings as to any fact, if the findings are supported by substantial evidence, are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. at 390. While the standard is high, where the ALJ's determination is not supported by substantial evidence on the record or where the ALJ has made an error of law, the district court must reverse the decision. Coffrnan v. Bowen, 829 F.2d at 517.

Although the Plaintiff has failed to file a timely motion for summary judgment, the Plaintiff has had sufficient opportunity to be heard and the complete administrative record is before the Court so that the matter is ready for resolution. See Myers v. Califano, 611 F.2d 980 (4th Cir. 1980) (the court may decide a social security appeal pursuant to Fed.R.Civ.P. 56).

Evidence on the Record

The Plaintiffs documented medical history discloses that she has suffered from psychiatric disorders since 1981 when she was first hospitalized with a diagnosis of paranoid schizophrenia. (R. at 197 — 201). Medical records of her psychiatric treatment do not resume until October 2, 1997, when Plaintiff was seen by Michael Shumate, Ph.D., for a consultative mental exam to assist in determining whether she was eligible for Social Security benefits. (R. at 237- 241).

The record contains medical evidence that in January of 1993, Plaintiff was seen in the St. Mary's Hospital Emergency Room complaining of left shoulder pain suffered when she slipped on ice. (R. at 220-221). In January of 1997, Plaintiff was treated for a calcaneus fracture with surgery following a motor vehicle accident. (R. at 232-236). Plaintiff recovered normally and was considered by her treating physician, William R. Beach, M.D., to be completely healed on February 28, 1997. (R. at 229, 231). However, as late as June 10, 1997, Dr. Beach observed that Plaintiff had difficulty standing for prolonged periods of time and recommended therapy to improve her range of motion and strength. (R. at 228). There is no evidence that Plaintiff pursued therapy.

Dr. Shumate's comprehensive exam noted that the Plaintiff was, at that time, taking Navane and Cogentin prescribed by a primary care physician. Dr. Cook. The Plaintiff was not undergoing other psychiatric treatment or counseling as noted by Dr. Shumate, but she experienced signs of acute depression or psychotic depression without her medication. At the time of the evaluation, the Plaintiff had been employed by a JC Penney store for only two weeks. Previously, she had worked for approximately ten years as a housekeeper at a hotel (Comfort Inn). The reason she gave Dr. Shumate for separating from the hotel employment was reportedly "`I just couldn't function; the people got on my nerves.'"

Navane is a psychotropic drug prescribed to manage psychotic manifestations. Physicians' Desk Reference 2018 (51St ed. 1997). Cogentin is an anticholinergic prescribed to manage muscle spasms caused by such psychoactive drugs. The Pillbook 112 (9th ed. 2000).

The record does not contain Dr. Cook's treatment record.

At the time of the exam, Dr. Shumate noted that there was "[n]o evidence of cognitive deterioration or disorganization," that "[h]er thinking was logical, relevant and goal oriented" and although her "thought content was appropriate.., she proved to be a poor historian." Dr. Shumate observed that the Plaintiff seemed reliable and candid, she was not delusional, and she denied hallucinations, homicidal or suicidal ideations. With a Global Assessment of Functioning (GM) at 70, her intellectual functioning was within the low average range and her fund of knowledge was quite limited. However, she "showed a largely ummpaired degree of memory functions," "concrete reasoning style," and "adequate judgment on WAIS-R questions."

Dr. Shumate discovered that the Plaintiff was able to engage in activities of daily living except that she did not drive or take public transportation and relied primarily on others for transportation needs. Dr. Shumate's impression was that Plaintiff "is struggling mightily with primary depression which probably is of the dysthymic variety. During particularly stressful times she may well suffer major depressive disorder." The evaluation concluded by recommending that Plaintiff might benefit from counseling services because she needs support while working. Dr. Shumate described Plaintiff as a "hard working, struggling lady" whom he hoped would continue to "cope and persevere." His final diagnosis was that Plaintiff suffered from unspecified dysthymic disorder and recurrent major depressive disorder, in partial remission. (R. at 240).

On October 15, 1997, Alan D. Entin, Ph.D., completed a Psychiatric Review Technique Form that was also reviewed by Robert P. Barrell, Ph.D. (R. at 242-254). Dr. Entin noted that Plaintiff required a residual functional capacity (REC) assessment because, though severe, her affective disorder did not meet or equal a listed impairment. (R. at 243). While Dr. Entin found that Plaintiff showed no sign or symptom of cluster or syndrome appropriate to organic mental disorders, schizophrenic, paranoid or other psychotic disorders, he found that she had mood disturbance accompanied by full or partial manic or depressive syndrome characterized by dysthymic disorder and recurrent major depressive disorder. (R. at 244-245). There was no evidence of any other type of mental disorder, but the doctor concluded the Plaintiff had slight restriction in her activities of daily living, moderate difficulty maintaining social functioning, and often had deficiencies in maintaining concentration, persistence and pace resulting in her inability timely to complete tasks. (R. at 249).

Dr. Entin also completed the RFC assessment and found the Plaintiff to have moderate limitations mainly in the areas of concentration, persistence and pace. (R. at 251). For instance, Dr. Entin noted limitation in her ability to understand and remember detailed instructions; to maintain attention and concentration for extended periods; to perform activities on a regular schedule or to be punctual within normal tolerance. Also of importance, Dr. Entin found that the Plaintiff was moderately limited in her ability to complete a normal work day or work week without interruptions from psychologically-based symptoms. (R. at 252). The Plaintiff also demonstrated moderate limitations in her ability to interact appropriately with others or to set realistic goals or make plans independently of others.

The Plaintiff was referred by Dr. Shumate to Suresh Gharse, M.D., apparently for outpatient treatment. (R. at 255, 256). The Plaintiff saw Dr. Gharse for the first time on December 8, 1997, again on February 23, 1998, and reportedly on November 3, 1998, the latter occurring after the unfavorable decision by the ALJ. (R. at 256-257, 277). In their first encounter, Dr. Gharse noted that the Plaintiff was still taking Navane and Cogentin, but she reported symptoms of depressed mood, decreased energy, guilt, anxiousness, obsessions, compulsions, irritability, impulsiveness, delusions, thought disruption, and oppositionalism for over a year. (R. at 256). Dr. Gharse found her GM to be 60 and further assessed her functioning as being extremely impaired in marriage/relationship/family job/school/performance, friendships/peer relationship, hobbies, and in performing her activities of daily living. Dr. Gharse also found marked impairments with the Plaintiffs ability to control her temper, with moderate or mild impairment of her physical health, eating habits, ability to concentrate, and sexual functioning. His diagnosis was that the Plaintiff suffered from major depression.

In her next visit, the Plaintiff was reportedly taking her medications but was "withdrawn" and "aloof" (R. at 257-258). Dr. Gharse reviewed the Plaintiffs medications and recommended monthly visits as a course of treatment. On April 20, 1998, Dr. Gharse completed an Attending Physicians Statement of Disability in which he stated that the Plaintiffs diagnosis was schizophrenia, paranoid type, and that the Plaintiff was withdrawn and hearing voices. (R. at 259). While Dr. Gharse found the Plaintiff was physically capable of light work, he also concluded that her mental status rendered her unable to work because severe psychological limitations precluded her from maintaining a full-time job and required support for daily activities. (R. at 260). Another Attending Physicians Statement of Disability was prepared for the Social Security Administration by Dr. Gharse on November 3, 1998. (R. at 277-278). This statement contained essentially the same information Dr. Gharse supplied in April; however, in addition he noted that "patient has schizophrenia but medically noncompliant." (R. at 278). The following month, Dr. Gharse submitted a Supplemental Doctor's Statement noting the same diagnosis of schizophrenia, paranoid type with objective findings that the Plaintiff was "slow" and "poorly motivated." (R. at 286). Dr. Gharse indicated that the Plaintiffs current response to treatment was "poor" and that she was unable to work without restriction in her last occupation. Id. With respect to her prognosis, Dr. Gharse indicated that the Plaintiff had not reached her "maximum medical recovery."

Hearing Testimony

At the time of the hearing before the ALJJ, the Plaintiff was 44 years old. (R. at 45). She testified that she lived with her husband, had completed the tenth grade and could read, write and do arithmetic. She confirmed she had no technical or military training. Id. She also testified that she maintained a drivers license and would drive several times a week. (R. at 46). She stated she was not employed nor was she receiving any workers' compensation or other benefits. While she had occasionally worked since the alleged onset date of October 28, 1996, she confirmed that she had not worked for more than a month at a time. (R. at 47-48).

The Plaintiff testified she stopped working because she "felt sick." (R. at 48). She stated that she independently engages in all her activities of daily living, including rising at 7:00 or 8:00 a.m.; washing and dressing herself; fixing her own breakfast; cleaning the house; doing laundry; watching television; sitting outside; visiting with her daughters; occasionally going to the store; and occasionally reading. (R. at 49-51). The Plaintiff also testified that she regularly attends church and occasionally goes out socially such as to a restaurant or the movies. (R. at 51).

Regarding her psychiatric impairments, the Plaintiff testified that she believes she has depression which was "hard to describe," but she gets nervous and stops eating. (R. at 53). She testified she does not want to hurt herself or others, but she cries and sometimes hears voices. (R. at 54). She also stated she does not handle any finances or work on a computer but she can comprehend what she reads or sees on television. (R. at 55). The Plaintiff stated she had some residual pain resulting from the injury and surgery to her heal, especially when the weather changes. However, she indicated she is able to wear shoes and does not require an assistive device or cane to move. (R. at 56).

The Plaintiff testified that she left her job as a housekeeping supervisor [at the Comfort Inn] because she "felt like people was talking about [her] and taking advantage of [her]" and that it seem like the manager wanted [her] to do to much... [and] blamed [her] for everything." (R. at 57). The Plaintiff also testified that she thought she worked well, taking care of approximately 19-20 rooms. Id.

The Plaintiff also confirmed that she was seeing Dr. Gharse every few months and taking medication, but otherwise was not receiving any counseling. (R. at 58). The ALJJ then questioned the Plaintiff regarding her physical restrictions which were generally unremarkable. Id.

The Plaintiffs husband also testified, providing the ALJJ with some background information regarding the development of the Plaintiffs psychiatric illness. (R. at 60 — 65). Among other things, Mr. Tipton confirmed the history of the Plaintiffs illness as reflected in the medical records. Although the record does not contain certain additional records, Mr. Tipton testified that the Plaintiff was seen for outpatient counseling from 1981-1985 at Insight Physician[s]. He also confirmed that she was seen for several years by a Dr. Cochran and then a Dr. John Guillian, accounting for several years of treatment through 1996. (R. at 62).

Mr. Tipton testified that the Plaintiff had held several jobs, but the main one was at the Comfort Inn hotel near her home. He described it as "a family type of setting where they allowed her to get sick from 1985 . .. to `90... she was getting sick maybe once year — sometimes even as much as twice." (R. at 62). Mr. Tipton explained that the Plaintiffs employer would allow her to have ten days to two weeks off during which time she would seek medical attention and rest so that she could go back to work. (R. at 62-63). However, when the hotel was taken over by new management, the Plaintiff was no longer able to take the kind of leave as she had previously enjoyed. Finally, she left the Comfort Inn in 1996, at which time Mr. Tipton described Plaintiffs condition as being "very sick," "crying," "she couldn't go on." Mr. Tipton also testified that the Plaintiff has good days, but she also has days where "she lays in bed all day and does absolutely nothing." (R. at 64). Their daughters visit every day, but besides their company, dressing and washing herself; the Plaintiff did not engage in any other regular activity — even household chores are sporadic — according to Mr. Tipton. He also emphasized that while she can drive, the Plaintiff does not do more than occasionally go to the grocery stores around the corner. Mr. Tipton further explained that the Plaintiff has aural hallucinations only "when she gets sick is when she hears the voices." (R. at 65). While the physicians the Plaintiff has seen shows nothing wrong with her physically," the treatment picture appeared very much the same to Mr. Tipton — that all the doctors seemed to agree that "[i]t will be something that will be with her until she die[s] and nothing that they can do about that" except that she should continue on her medication. (R. at 65).

ALJ Decision

The ALJ rendered an unfavorable decision on October 28, 1998, after determining that although the Plaintiff suffered from severe impairments, she did not meet or equal a listed impairment and was capable of performing work in the local and national economies. (R. at 19-27). The ALJ extensively reviewed the Plaintiffs medical records that were available at the time of the hearing, but he did not have the benefit of Dr. Gharse's second assessment that was not prepared until November 3, 1998.

Because the Plaintiff alleges she is disabled by pain or other symptoms, the ALJ evaluated the available medical and other evidence pursuant to an established two-step process under 20 C.F.R. § 404.1529a and 416.929(a). (R. at 21). Under the regulations, a plaintiff must produce objective medical evidence showing the existence of a medical impairment which could be expected to reasonably produce the symptoms alleged. Then, the ALJJ must evaluate the alleged intensity and persistence of the pain and the extent to which it affects the ability to work.

Pursuant to 20 C.F.R. § 404.1529, 416.929, 404.1569a, and 416.969a, the ALJ evaluated Plaintiffs subjective complaints that limit her ability to function. He discussed the testimony offered by the Plaintiff and her husband at the hearing, including her feelings of low self-worth, difficulty in eating and sleeping, crying spells, and hearing voices. The ALJ considered the Plaintiffs testimony that she left the job at the Comfort Inn because the manager wanted her to do too much work and that she felt people were talking about her. The ALJ also found that the Plaintiff was able to engage independently in virtually all of the normal activities of daily living and that she socialized with friends and relatives.

Further, the ALJJ found that the Plaintiff could lift up to 50 pounds, but had difficulty walking or standing for prolonged periods due to ankle stiffness. The ALJJ found the Plaintiffs testimony generally credible with the exception of the severity of her impairments because of the level of activity in which she was able to engage inside and outside her home according to her own account. (R. at 22). The ALJJ reasoned that the Plaintiffs daily activities were consistent with the performance of at least unskilled work and the mental capacity to perform sustained work.Id. Despite the Plaintiffs limitations resulting from her heel surgery, the ALJJ found that Plaintiff was able to engage in at least sedentary work.

From a psychiatric standpoint, the ALJJ found that despite the Plaintiffs diagnosis of paranoid schizophrenia and major depression, she had only a slight restriction in the activities of daily living. (R. at 22). Further, the ALJJ concluded that "[t]here is no indication that the claimant has any deficiencies of concentration, persistence, or pace. . . [with only] one episode of deterioration in a work setting." (R. at 23). Furthermore, the ALJJ concluded that the Plaintiff "does not have any marked or extreme psychiatric functional limitations." Id. Based on the entire record, the ALJJ found that the Plaintiff had the residual functional capacity to lift up to 20 pounds, and that she could stand or walk for up to four hours in an eight-hour workday, thereby being capable of at least sedentary work. (R. at 24). With respect to her psychiatric impairments, the ALJJ determined she was limited to jobs with only one-to-two step tasks, simple written and oral instructions, low to moderate levels of stress and frustration, and limited interaction with the public. Id. Accordingly, given these limitations, she could not in the ALJJ's opinion perform her past relevant work as a housekeeper supervisor.

The ALJJ found that, at 44 years of age, the Plaintiff was classified as a younger individual with a limited education who had performed semi-skilled work in the past without any transferable skills. Although the grids direct a finding of "not disabled," because the Plaintiff has nonexertional limitations, Rule 201. 25 is to be used only as a framework for the decision-making.

With respect to the Plaintiffs ability to work, the ALJJ concluded that the testimony of the vocational expert (VE), Andrew Beale, Ph.D., supported the ALJJ's decision that unskilled sedentary jobs exist in the national and regional economies for a person with the Plaintiffs limitations. (R. at 24; 66-70). However, if the Plaintiff were found to have "pain of a severe nature; causing periodic loss of concentration, problems attending to tasks, and difficulty meeting attendance standards," the VE testified that there would not be a significant number of jobs for such a person. (R. at 25).


The ALJJ followed the required sequential process to determine the Plaintiffs disability status. He determined that the Plaintiff is not currently working and has not since October 23, 1996. The ALJJ also found that the Plaintiff did not engage in substantial gainful activity (SGA), the first determinative step in the sequence. §§ 416.920(b), 404.1510, 404.1572, 404.1520(c), (R. at 25). Furthermore, the Plaintiffs condition was found to be severe, as required by §§ 416.920(c) and 404.1520(c) in order to proceed in the analysis. (R. at 25). However, in the opinion of the ALJJ, the Plaintiffs impairment failed to meet the listing in Appendix 1. (R. at 25). Thus, the requirements of § § 404.1520(d) and 416.920(d) were not met and the Plaintiffs past work experience and current RFC were analyzed to determine if she could return to her former line of work. §§ 416.920(e) and 404.1520(e). However, the ALJJ concluded that Plaintiff could not return to her past relevant experience as an assistant housekeeper supervisor. (R. at 26).

Because she was unable to return to her previous line of employment, step five in the sequence requires an assessment of the Plaintiffs ability to perform other jobs: "If you cannot do any work you have done in the past because you have a severe impairment(s), we will consider your residual functional capacity [RFC] and your age, education, and past work experience to see if you can do other work. If you cannot, we will find you disabled." §§ 404.1520(f)(1) and 416.920(f)(1). The burden of proof shifts at step five to the Defendant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983) (indicating that once the claimant makes a prima facie showing of a disability keeping him from performing prior work, the Defendant assumes the burden of proving he does not have the capacity to perform other work). It is at this juncture in the analysis that this Court takes issue with the ALJJ's otherwise thorough evaluation.

While the ALJJ determined that the Plaintiff does have the capacity to make adjustments to work which exists in significant numbers in the national and regional economies, he did not have a sufficient evidentiary basis to do so. Specifically, the ALJ never determined if the Plaintiff could make adjustments to work and maintain a forty-hour work week, as required. 20 C.F.R. § 404.1545 (c), 416.945(c). A Social Security Ruling effective July 2, 1996, entitled "Assessing Residual Functional Capacity in Initial Claims," is intended to state the Defendant's definition of the RFC and the required procedure for an RFC determination. SSR 96-8p. The first point under SSR 96-8p's section entitled "Purpose" states: "Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A "regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Id. Furthermore, the Ruling requires, when assessing the RFC, that:

"When we assess your mental abilities, we first assess the nature and extent of your mental limitations and restrictions and then determine your residual functional capacity for work activity on a regular and continuing basis." § 404.1545(c) (emphasis added).

the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, 5 days a week, or an equivalent work schedule), and describe the maximum amount of each workrelated activity the individual can perform based on the evidence available in the case record.
Id. (footnote omitted).

Aside from a cursory statement that the Plaintiff was capable of sustained work from her admission that she engaged in the activities of daily living, social contacts with friends and family, and could understand the contents of television programs, the ALJJ did not adequately analyze or make any findings related to Plaintiffs ability to performed sustained work activities on a regular and continuing basis as set forth in the regulation. Furthermore, the ALJJ's conclusion that "[t]here is no indication that the claimant has any deficiencies of concentration, persistence, or pace... [with only] one episode of deterioration in a work setting" and that the Plaintiff "does not have any marked or extreme psychiatric functional limitations" misstates the evidence on the record. (R. at 23). In fact, all of the medical evidence on the record discloses at least mild to moderate deficiencies in concentration, persistence and pace and support on contrary conclusion that the Plaintiff was limited in her ability to work a normal work-day and work-week without interruption as a result of her psychological symptoms, or at the very least, she required support to combat stress-onset depression while working. (R. at 240, 249, 251-252, 256, 260).

In assessing mental impairments, the ALJJ must apply a special procedure under §§ 404.1 520a(b)-(c) and 41 6.920a(b)-(c). In this case, the ALJJ did not incorporate the information from this analysis into his decision and because the substantial evidence on the record is unrebutted that the Plaintiff has limitations in the ability to perform sustained work, the ALJJ's finding that the "claimant has the mental capability to perform sustained work" is not supported by substantial evidence on the record. (R. at 22).

Although a properly appended OHA Psychiatric Review Technique Form was included in the record, it does not reflect conclusions based on substantial evidence on the record. (R. at 28- 30).

While the ALJJ was not presented with an abundance of medical evidence spanning the entire twenty years the Plaintiff has been diagnosed with some form of mental disorder, he nonetheless had access to medical records and a vocational expert's opinion regarding the Plaintiffs current mental and physical status that include evidence of her inability to work on a full time basis. The ALJJ's conclusion that adjustments could presumably be made that would allow the Plaintiff to work a full eight-hour day, five-day-a-week schedule or its equivalent is simply not supported by substantial evidence upon which he could rely. SSR 96-8p.

"[T]he fact that an individual has the ability to do the work involved in a particular job, even on a "sustained basis, ' does not necessarily mean that she can sustain such work for a 40- hour work week." Wallace v. Apfel, 1998 WL 967376, at *4 (E.D.Pa. 1998).

Evidence found in the record relative to the Plaintiffs ability to work a forty-hour work week is scant. The objective medical evidence shows that all of the physicians or psychologists who examined the Plaintiff diagnosed her with some form of schizophrenia, affective disorder and/or depression — all severe impairments. Furthermore, the Plaintiffs intellectual functioning was judged to be either within the low average or low ranges even though she exhibited a concrete reasoning style, had largely unimpaired memory, and demonstrated adequate judgment. (R. at 237-241; 255-256).

Both the physicians or psychologists who evaluated the Plaintiff and those who reviewed her records all noted that she had some restrictions on social functioning and activities of daily living as well deficiencies in maintaining concentration, persistence, and pace. (R. at 240, 249, 251, 256). Dr. Shumate commented that the Plaintiff was "struggling mightily with primary depression... [d]uring particularly stressful times she may well suffer major depressive disorder." (R. at 240). Dr. Entin noted that not only was the Plaintiff limited in her ability to

understand and remember detailed instructions, but she also had moderate limitations in the areas of concentration, persistence and pace including the ability to perform activities on a regular schedule or be punctual within normal tolerance. (R. at 251). Further, Dr. Entin noted that the Plaintiff was moderately limited in her ability to complete a normal work day or work week without disturbance caused by her mental condition. (R. at 252).

Although Dr. Gharse did not treat the Plaintiff extensively over a long period of time, he did evaluate or treat her several times in person upon Dr. Shumate's referral. Dr. Gharse's evaluations are helpful in understanding the Plaintiffs predicament between her physical and exertional capabilities and her mental restrictions. (R. at 256-257, 277). Though Dr. Gharse's opinion that her mental status rendered her totally disabled is not decisive, the underlying facts on which he based his opinion constitute substantial evidence that the ALJJ did not consider in rendering his decision.

Present in the record and relevant to the analysis of whether the Plaintiff was capable of working on a sustained basis is also evidence that she had marked impairments in her ability to control her temper, moderate or mild limitations in her ability to concentrate, an inability because of her diagnosed mental illness to hold a full-time job, and the need for support for her daily activities. (R. at 260). At the same time, and of concern on review as well, is Dr. Gharse's statement that the Plaintiff had not reached her maximum medical recovery and that she was medically non-compliant. (R. at 286). Dr. Gharse's report was made shortly after the unfavorable ALJJ decision was rendered and the issue of possible non-compliance should have been addressed by the Appeals Council. However, it does not appear from the record to have been considered and it should therefore be explored in detail on remand.

Other evidence of record that contradicts the ALJJ" s determination is the testimony by the Plaintiff and her husband regarding her sustained mental functioning and the work accommodations made by her previous employer in response to her limitations. The ALJJ found the Plaintiff to be "generally credible except regarding the severity of her impairments and symptoms and their effect on her functional abilities." (R. at 22). Credibility determinations are fully within the ALJJ's authority; however, he must lay a proper foundation for making such a determination. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985) (an ALJJ must lay a foundation for credibility determinations). Aside from discounting the Plaintiffs testimony, the ALJJ apparently rejected the unrebutted testimony of Mr. Tipton regarding the consistency of the Plaintiffs daily activities, social functioning, and ability to sustain work. The ALJJ also disregarded the consistent findings by all the medical professionals regarding the Plaintiffs mental limitations on her ability to engage in sustained activity. Even if the ALJJ considered the limitations to be minimal, it is not reflected in his analysis and at the very least he should have elicited more information to support his conclusions and justify rejection of the contrary evidence. Although perhaps unsophisticated, the picture sketched by both the Plaintiff and her husband reflect what was observed by Dr. Shumate: Plaintiff is a hard-working, struggling individual who is capable of engaging in work during the periods of time when she is not faced with bouts of severe depression or other manifestations of her mental disorders.

It must also be noted that the Plaintiffs previous employer at the Comfort Inn made what appears to be exceptional accommodations with respect to allowing her flexibility in taking time off to cope with her mental illness, accommodations that are not likely to be replicated in the average workplace. (R. at 62). Furthermore, the sporadic nature of Plaintiffs bouts with depression as a reaction to stress cannot seriously be argued to allow her to engage in sustained activity necessary to retain the residual functional capacity to even engage in sedentary work.

Though the Plaintiff is able to adequately engage in most activities of daily living and social functioning with only mild to moderate limitations, this does not account for the more significant impact of mental impairments under §§ 404.1520a and 416.920a. The Plaintiff has made attempts to work in other settings, but she has failed for what appears to be a variety of factors including what she and her husband describe as "getting sick." (R. at 63-64). Mr. Tipton clarified some of the Plaintiffs earlier testimony, which appears consistent with the limitations noted in the medical evidence, that the Plaintiff does "have good days." (R. at 64). At the same time, Mr. Tipton explained that "some days she lays in bed all day and does absolutely nothing," their daughters "come by pretty much every day. . . to see her and spend time with her," and "she will occasionally be able to sweep or vacuum but it's not a regular fixing the bed or, or doing anything on a regular basis" and that depending on her level of "sickness," her medication may be adjusted, but "no days the. . . same and today is a very good day." (R. at 64).

When the Plaintiff testified that she was "sick" because she felt like people were talking about her, that her manager asked her to do too much and that she felt blamed for everything, it must be understood in the context of her diagnosed mental illness. (R. at 57). When her husband testified that "she lays in bed all day and does absolutely nothing," based on her documented illness, the medical evidence does not support a conclusion that this was merely by voluntary choice. (R. at 64).

The ALJJ did a thorough job of evaluating the Plaintiffs impairments within the context of her physical restrictions. However, his findings that the Plaintiff has the residual functional capacity to perform sedentary work restricted by one-to-two step work tasks; simple written and verbal instructions; low to moderate levels of stress and frustration; and limited interaction between the public and co-workers, does not adequately take into account whether she could maintain such activity on a sustained basis. (R. at 24, 26).

Finally, although the ALJJ adequately framed Plaintiffs mental limitations as set forth in the fourth hypothetical presented to the VE, the ALJJ failed to incorporate the VE's opinion into his decision:

assume you have a person who has severe levels of stress and frustration and that they're not able to interact with the public, co-workers and supervisors. They're unable to maintain sustained concentration, attend to and complete tasks in a timely manner and further they're unable to meet production rate levels. They're unable to maintain employment on a regular basis and they're unable to maintain attendance at a work site and they're further unable to complete a normal workday without interruption from psychological based symptoms. Considering her age, education and past work experience you have described — any jobs exist in the national or regional economy?

(R. at 69).

The VE replied, "No, sir. There would be no competitive work such an individual would be able to perform." (R. at 69). Although the ALJJ incorporated evidence with respect to the Plaintiffs mental limitations in the hypothetical, he nonetheless chose to ignore not only the testimony of the Plaintiff and her husband, but also the consistent opinions of both examining and non-examining medical sources. Because the ALJJ's finding that there was "no evidence" of limitations in persistence, pace and concentration is incorrect, it cannot be the basis for refusing to incorporate the VE's opinion testimony on this issue. Essentially, therefore, the question of whether the Plaintiff was able to sustain work on a regular and continuing basis was not adequately addressed and without such a determination by the ALJJ of the Plaintiffs ability to work a forty-hour week, or its equivalent as required by SSR 96-8p, a determination of "not disabled" is not supported by the application of the correct legal standard or by substantial evidence in the record.

When a plaintiff presents sufficient evidence to prove that her diagnosis meets or equals a listing, it is well settled that an ALJJ may not cull the evidence to find that which supports a finding of no disability. See Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 488 (1951) (holding that "substantiality of evidence must take into account whatever in the record fairly detracts from its weight"); accord Breeden v. Weinberger, 493 F.2d 1002, 1007 (4ch Cir. I 974) (holding that where the administrative decision is not ""justified by a fair estimate of the worth"' of evidence in support of the claimant, the court "must conclude [the decision] is not supported by substantial evidence."); Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984); Grey v. Heckler, 721 F.2d 41, 44 (2nd Cir. 1983); Loza v. Apfel. 219 F.3d 378, 393 (explaining that the ALJJ "cannot "pick and choose' only the evidence that supports his position."); Cassell v. Sec'v of Health and Human Serv., 1989 WL 109763, at *3 (6th Cir. Sept. 25, 1989) (unpublished opinion); Switzer v. Heckler, 742 F.2d 382, 385 (7th Cir. 1984) (holding that "the attempt to use only the portions favorable to [the secretary's] position, while ignoring other parts, is improper."); Brand v. Sec'v of Health and Human Serv., 623 F.2d 523, 527 (8th Cir. 1980). Likewise, when a plaintiff presents unrebutted evidence of psychological limitations that the ALJJ seemingly disregards in making credibility determinations that are otherwise within the exercise of sound discretion, the Court must reverse the resulting adverse decision. This is not a situation where the Court has re-weighed the evidence, but has found that the Commissioner could not have arrived at the unfavorable decision he did based on the substantial evidence on the record or the application of the correct legal standard. See Coffman v. Bowen, 829 F.2d at 517.


For the foregoing reasons, it is recommended that Defendant's Motion for Summary Judgment be DENIED, the decision of the Commissioner be VACATED, and that the matter be REMANDED for a new hearing and evaluation of the medical evidence consistent with this recommendation and applicable social security rulings and regulations.

Let the Clerk of the Court forward a copy of this Report and Recommendation to the Honorable James R. Spencer, the Plaintiff; proceeding pro se, and counsel for the Defendant.

It is so ORDERED.

Notice to Parties

Failure to file written objections to the proposed findings, conclusions and recommendations of the Magistrate Judge contained in the foregoing report within ten (10) days after being served with a copy of this report shall bar you from attacking on appeal the findings and conclusions accepted and adopted by the District Judge except upon grounds of plain error.

Summaries of

Tipton v. Massanari

United States District Court, E.D. Virginia
Aug 3, 2001
3:00CV126 (E.D. Va. Aug. 3, 2001)
Case details for

Tipton v. Massanari

Case Details

Full title:BARBARA TIPTON, Plaintiff, v. LARRY MASSANARI, Commissioner of Social…

Court:United States District Court, E.D. Virginia

Date published: Aug 3, 2001


3:00CV126 (E.D. Va. Aug. 3, 2001)