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Lysak v. Commissioner of Social Security

November 4, 2009

ATHENA MICHELLE LYSAK, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: The Hon. William J. Martini

OPINION

MEMORANDUM OPINION

Plaintiff Athena Michelle Lysak brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act as amended, seeking review of a final determination by the Commissioner of Social Security (the "Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSIB"). On appeal to this Court, Plaintiff contends that the Commissioner‟s administrative decision disallowing her claim lacks any substantial medical or other evidence in the record and must be reversed or remanded. Having considered the parties‟ filings, and the law, and for the reasons articulated below, the Commissioner‟s decision will be VACATED and REMANDED for reconsideration consistent with the opinion.

I. FACTUAL BACKROUND AND PROCEDURAL POSTURE

Plaintiff filed for DIB and SSIB on January 25, 2006 and February 15, 2006 respectively. The filings alleged disability resulting from severe medical impairments related to cardiac, orthopedic, neurological, psychiatric and visual ailments. Plaintiff alleges disability as of October 3, 2005 and claims to be unable to perform work or gainful employment.

Administrative Law Judge ("ALJ") Dennis O‟Leary denied Plaintiff‟s claim on July 18, 2008. The Plaintiff filed a request for review of the ALJ‟s decision with the Appeals Council, which denied the request for review on November 14, 2008, effectively affirming the ALJ‟s ruling. See Letter from Office of Disability Adjudication and Review to Athena Lysak: Notice of Appeals Counsel Action (Nov. 14, 2008) (Tr. 5). On January 14, 2009, Plaintiff filed in this Court a Complaint, (Doc. No. 1), bringing suit against the Commissioner of Social Security. The Complaint seeks to reverse the Commissioner‟s decision denying benefits, or to vacate and remand the case for a new hearing. The matter has been briefed. (See Docs. No. 8 (Plaintiff‟s brief) & Doc. No. 9 (Defendant‟s brief).)

II. STANDARD OF REVIEW

A reviewing district court must affirm an ALJ‟s ruling if the decision was based on the correct legal standard and if the factual findings are supported by substantial evidence in the record. 42 U.S.C. §§ 405(g), 1383(c)(3); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008) (citations omitted).

At the administrative level, a five-step process is used to determine whether an applicant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. In the first step, the Commissioner determines whether the claimant has engaged in substantial gainful activity since the onset date of the alleged disability. Id. §§ 404.1520(b), 416.920(b). If not, the Commissioner moves to step two to determine if the claimant‟s alleged impairments qualify as "severe." Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe impairment or impairments, the Commissioner inquires in step three as to whether the impairment or impairments meet or equal the criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A. If so, the claimant is automatically eligible to receive benefits (and the analysis ends); if not, the Commissioner moves on to step four. Id. §§ 404.1520(d), 416.920(d). In the fourth step, the Commissioner decides whether, despite any severe impairment(s), the claimant retains the Residual Functional Capacity ("RFC") to perform past relevant work. Id. §§ 404.1520(e)-(f), 416.920(e)-(f). The claimant bears the burden of proof at each of these first four steps. At step five, the burden shifts to the Social Security Administration to demonstrate that the claimant is capable of performing other jobs that exist in significant numbers in the national economy in light of the claimant‟s age, education, work experience and RFC. 20 C.F.R. §§ 404.1520(g), 416.920(g); see Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007) (citations omitted).

This Court conducts a plenary review of the legal issues. See Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). The factual findings of the ALJ are reviewed "only to determine whether the administrative record contains substantial evidence supporting the findings." Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). Substantial evidence does not speak to the amount of evidence, but rather "such relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Woody v. Sec'y of Health & Human Servs., 859 F.2d 1156, 1159 (3d Cir. 1988) (stating that substantial evidence is "more than a mere scintilla but may be less than a preponderance"). Under this standard of review a court will affirm the ALJ‟s determination if the administrative record, in its entirety, yields such substantial evidence as would allow a reasonable mind to support the conclusions reached.

III. PRIOR ADMINISTRATIVE PROCEEDINGS

Plaintiff‟s claim was analyzed under the aforementioned five-step process used by the Social Security Administration to determine benefits eligibility. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the date of alleged disability. (ALJ Op. 3, Tr. 16.) This finding is not contested by either party. Proceeding to step two, the ALJ found that the Plaintiff had numerous severe impairments including: "congenital aortic stenosis with status-post aortic valve replacement, right retinal artery embolus with residual loss of vision of the right eye . . . right arm/wrist pain syndrome and anxiety and depressive disorders." (Id.) Proceeding to the third step, the ALJ found that these ailments, individually or in combination, were not equal to any of those found in the Listing of Impairments within the regulations. (ALJ Op. 4-5, Tr. 17-18); see 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A. The ALJ determined that the Plaintiff‟s RFC was sufficient for sedentary work which would not require continuous "fine fingering manipulation" with her right upper extremity, binocular vision, working at heights or around machinery. (ALJ Op. 6, Tr. 19.) Because of mental limitations, the ALJ found that Plaintiff could only perform work which "entails understanding; carrying out ands [sic] remembering simple instructions; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine setting." (Id.) At step four, the ALJ recommended that the Plaintiff avoid complex and high-pressure jobs and thus concluded that she could not return to her previous job as an administrative assistant. (ALJ Op. 9, Tr. 22.) During the final step, the ALJ determined that there were a significant number of other positions in the national economy that Plaintiff could obtain, including being a surveillance system monitor, cutter-paster, and weight tester. (ALJ Op. 10, Tr. 23.) Plaintiff contests that the ALJ‟s determinations were flawed in steps two, three, four and five.

IV. ANALYSIS

On appeal to this Court, Plaintiff puts forth several arguments in support of her position. Although this opinion addresses each of Plaintiff‟s contentions, it pays particular attention to arguments relating to the ALJ‟s mental RFC analysis because the Court will order remand in connection with defects in that analysis.

A. STEP TWO: AILMENTS OMMITTED BY THE ALJ AS "SEVERE IMPAIRMENTS"

Step two of the eligibility process requires the Commissioner to determine if the claimant‟s alleged impairments qualify as "severe." 20 C.F.R. §§ 404.1520(c), 416.920(c). The Court notes that the ALJ found that the Plaintiff had numerous "severe impairments," including: "congenital aortic stenosis with status-post aortic valve replacement, right retinal artery embolus with residual loss of vision of the right eye . . . right arm/wrist pain syndrome and anxiety and depressive disorders." (ALJ Op. 3, Tr. 16.) Plaintiff argues that the ALJ should have found other "severe" ailments, including migraine headaches, a right ankle fracture and a cerebrovascular accident. (Pl. Br. 15-27).

The regulations state that an impairment is not severe "if it does not significantly limit [claimant‟s] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a); McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003).

1. Headaches

Plaintiff has complained of migraine headaches which she says have left her unable to work. Test. of Athena Lysak at Oral Hr‟g (Jan. 31, 2008) (Tr. 278). The ALJ explained in his opinion that the evidence did not establish that her "migraine headaches" were of a "debilitating nature." (ALJ Op. 7, Tr. 20.) Based on a letter supplied by Dr. Warner, Plaintiff‟s ...


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