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Simmons v. Commissioner of Social Security

March 8, 2010


The opinion of the court was delivered by: Wigenton, District Judge.


Before the Court is Plaintiff Stephen P. Simmons' ("Simmons" or "Plaintiff") appeal of the Commissioner of Social Security's (the "Commissioner") final decision that he was ineligible for Disability Insurance Benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 421 et. seq. The central issues are whether the Administrative Law Judge ("ALJ") erred in determining Plaintiff did not meet a listed impairment and in failing to include questions regarding Plaintiff's mental impairments in the hypothetical questions submitted to the vocational expert.

The appeal is decided without oral argument pursuant to Local Civil Rule 9.1(b). The Court has subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper under 28 U.S.C. § 1391(b). For the reasons set forth below, the Court VACATES and REMANDS the Commissioner's decision.


Plaintiff Stephen P. Simmons filed a claim with the Commissioner of Social Security for disability insurance benefits on July 13, 2004 for the period beginning on August 26, 2000 and ending on December 31, 2001. In order to receive disability insurance benefits, Simmons must establish he was disabled during that period. He claims both mental and physical disabilities under sections 216(i) and 223(d) of the Act. His claim was initially denied on March 14, 2005, and was denied again on reconsideration on April 29, 2005.

Simmons is 56 years old and has had two years of college education. (Transcript 30 (hereinafter "Tr.").) He was a salesman in the paint and screen printing field until 1996, when the company he worked for closed. (Tr. 30.) In the 1980's, Simmons was hospitalized multiple times for clinical depression and attempted suicide.*fn1 (Tr. 35-36.) He has a history of deviant sexual behavior and has been convicted of multiple sexual offenses.*fn2 (Tr. 1001, 1125-26.) Prior to the instant action, Simmons had collected Social Security Disability Benefits for depression from approximately November 1981 until March 1993. (Tr. 19, 28, 36-37, 55-56.)

From September 24, 1997 until November 27, 2001, Simmons was incarcerated in Mid State Correctional Facility and Suffolk County Correctional Facility for criminal sexual conduct, second and third degree endangering the welfare of a minor, sexual assault and possession of a sexual performance by a child. (Tr. 41, 1104.) Upon his release, Simmons was involuntarily committed to the Department of Human Service's Special Treatment Unit, where he presently remains. (Tr. 42, 318, 820.) Psychological evaluations in 2001 and 2002 demonstrated there was a high risk he would reoffend and it was therefore recommended that he remain in the custody of the state. Specifically, Robert Lathey, Ph.D. evaluated Simmons on July 6, 2001 and noted that Simmons showed "no remorse" for his crimes, was "negative, hostile, and defensive ... arrogant, self-centered and highly suspicious of the motives of others. . . . and he is an untreated sex offender at risk to reoffend." (Tr. 821-22.) On December 11, 2001, Michael R. McAllister, DO ("McAllister"), diagnosed Simmons with pedophilia, depression and personality disorder.*fn3

(Tr. 1122-23.) In both 2001 and 2002, McAllister recommended "continued sexual offender treatment, custody and care . . ." and concluded that Simmons "suffers mental abnormalities as well as a personality disorder . . . which predispose him to further acts of sexual violence." (Tr. 1111, 1123.) On December 10, 2001, Donna LoBiondo, Ph.D. ("LoBiondo"), diagnosed Simmons with pedophilia, depressive disorder and personality disorder with narcissistic and antisocial traits.*fn4 (Tr. 1117.) LoBiondo concluded that he was "at high risk to sexually reoffend" and was "in need of sex offender treatment at the Special Treatment Unit."*fn5 (Tr. 1117.)*fn6

On August 26, 2000, Simmons was admitted to Stony Brook Hospital suffering from a heart attack. (Tr. 184-225.) He was treated and released on September 1, 2000 in stable condition. (Tr. 184-225.) In July of 2003, Simmons began cardiac consultations at St. Francis Medical Center. (Tr. 230-232.) He was admitted to St. Francis Medical Center on November 24, 2003 for elective cardiac catheterization after an abnormal echocardiogram. (Tr. 241-243.) The procedure revealed that Plaintiff had coronary artery disease. (Tr. 241-243.) As a result, Simmons underwent triple bypass surgery on November 26, 2003 and was discharged on December 7, 2003. (Tr. 241-243.)

Simmons filed an application for Social Security Disability Benefits on July 13, 2004. (Tr. 13.) He alleged disability due to "2 heart attacks -- blockage in main artery . . . damage to left ventrical diabetes, high blood pressure, high cholesterol-non specific and mental disorder." (Tr. 64.) His application was denied initially on March 14, 2005, and again on reconsideration on April 29, 2005. (Tr. 63-73.) Simmons then filed for a hearing before the ALJ. (Tr. 76-77.) The hearing was held on July 18, 2007. (Tr. 24-60.)

Written interrogatories were submitted from internal medicine expert Martin A. Fechner ("Fechner") and vocational expert, Rocco Meola ("Meola"). (Tr. 1353-1362, 1365-1369.) Fechner found that prior to Simmons' health worsening in 2003, his heart condition did not meet a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16, 1354-1361.) Meola, on the other hand, determined that Simmons' physical limitations from August 26, 2000 until early 2003 prevented him from continuing his past relevant work. (Tr. 1368.) Nevertheless, Meola stated that during this period, other work existed in the national and regional economy that a person of Simmons' physical limitations could perform. (Tr. 1368.) An orthopedist reviewed Simmons' medical file and concluded that Simmons had no orthopedic disability, although he refrained from commenting on Simmons' psychological, psychiatric or cardiac impairments. (Tr. 1363-1364.)

On January 18, 2008, the ALJ determined that Simmons "was not disabled under sections 216(i) and 223(d) of the Social Security Act" between August 26, 2000 and December 31, 2001. (Tr. 23.) While Simmons' coronary artery disease and personality disorder were determined to be "severe" impairments, the ALJ held that these impairments did not meet a listed impairment under 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Tr. 15-17.) Since the ALJ determined that there were a significant number of jobs available in the national economy that a person of Simmons' physical and mental capacities could perform, she denied Simmons' claim for Disability Insurance Benefits. (Tr. 21-23.) Simmons requested a review of the decision, (Tr. 8-9), and his request was denied on February 26, 2009. (Tr. 5.) Simmons then filed a complaint in this Court appealing the Commissioner's decision to deny him disability benefits for physical and mental disability. (Pl.'s Compl. ¶ 3.) Simmons alleges a lack of substantial evidence supporting the Commissioner's decision and requests additional evidence be taken into account on his behalf. (Id. ¶ 9, (b).)


To establish disability under the Social Security Act, Simmons must show he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" lasting continuously for at least twelve months. 42 U.S.C. § 423(d)(1)(A). This physical or mental impairment must be so severe as to render Simmons "not only unable to do his previous work, but [unable], considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy . . ." § 423(d)(2)(A). The Social Security Administration has promulgated a five-step evaluation process to determine whether an individual is entitled to Social Security disability benefits. See 20 C.F.R. § 404.1520.

In step one, the ALJ decides whether the claimant is currently engaged in substantial gainful activity. If the claimant is engaged in substantial gainful activity, the claimant is not eligible for disability benefits and the ALJ's inquiry ends. § 404.1520(a). If the claimant is not engaged in such activity, then in step two the ALJ determines whether the claimant is suffering from a severe impairment. If the impairment is not severe, the claimant cannot qualify for disability benefits and the ALJ's inquiry ends. § 404.1520(c). If the impairment is severe, then in step three the ALJ evaluates whether the evidence establishes that the claimant suffers from a listed impairment. § 404.1520(d). If the claimant suffers from a listed impairment, then the claimant is automatically entitled to disability benefits and the ALJ's inquiry ends. Id. If the claimant does not suffer such an impairment, then in step four the ALJ reviews whether the claimant retains the "residual functional capacity" to perform his past relevant work. § 404.1520(e). If the claimant can perform their past relevant work, the claimant is not eligible for disability benefits and the ALJ's inquiry ends. Id. If claimant cannot perform such work, then in step five the ALJ considers whether work exists in significant numbers in the national economy that the claimant can perform given his medical impairments, age, education, past work experience, and "residual functional capacity." § 404.1520(f). If such work does exist, the claimant is not eligible for disability benefits. Id.

In evaluating the ALJ's decision, we must affirm if the decision is supported by "substantial evidence." 42 U.S.C. § 405(g); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988) (the standard of review is "whether there is substantial evidence in the record" to support the ALJ's decision). Substantial evidence is "more than a mere scintilla" and is generally thought of as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This court is required to give substantial weight and deference to the ALJ's findings. Scott v. Astrue, 297 Fed. App'x 126, 128 (3d Cir. 2008). However, the evaluation of the presence of substantial evidence is not merely a quantitative evaluation, but a qualitative one, "without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). Furthermore, even where substantial evidence is found to exist, this Court may still review the ALJ's decision to determine if it was based upon proper legal standards. Curtin v. Harris, 508 F.Supp. 791, 795 (D.N.J. 1981) (holding that an ALJ's undue emphasis on certain record evidence was in error because it was based on an "erroneous legal standard").

In considering an appeal from a denial of benefits, remand is appropriate "where relevant, probative and available evidence was not explicitly weighed in arriving at a decision on the plaintiff's claim for disability benefits." Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979) (quoting Saldana v. Weinberger, 421 F.Supp. 1127, 1131 (E.D. Pa. 1976)). But, a decision to "award benefits should be made only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits." Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984).


Simmons claims the ALJ's decision is not supported by substantial evidence. (Pl.'s Compl. ¶ 9.) He argues, among other things, that the ALJ improperly evaluated the medical evidence in deciding he did not meet a listed impairment; and that the Commissioner erred in failing to include plaintiff's mental limitations in a hypothetical interrogatory submitted to the vocational expert. (Pl.'s Br. 23, 28.)

Specifically, he claims that he meets the criteria of Listing 12.04 (Affective Disorders) and Listing 12.08 (Personality Disorders) and that his medically determinable mental impairments include "personality disorder, impulse control problems, anger problems, and a history of depression and substance abuse." (Pl.'s Br. 23, 27; Tr. 135.)

Listing 12.04 states:

12.04: Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.

The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the ...

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