                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2005

Winters v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1854




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Case No: 05-1854

                                  ARLENE WINTERS,
                                            Appellant

                                              v.


                           JO ANNE B. BARNHART,
                      COMMISSIONER OF SOCIAL SECURITY




                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                              District Court No.: 03-CV-1819
                   District Judge: The Honorable Terrence F. McVerry


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  October 20, 2005

              Before: SMITH, BECKER, and NYGAARD, Circuit Judges

                               (Filed: November 3, 2005 )


                                        OPINION


SMITH, Circuit Judge.

      Arlene Winters appeals from the District Court’s judgment, which affirmed the

decision of the Commissioner of Social Security denying her application for disability

insurance benefits under Title II and supplemental security income (“SSI”) under Title
XVI of the Social Security Act.1 Our review “is identical to that of the District Court,

namely to determine whether there is substantial evidence to support the Commissioner’s

decision.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is

“more than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (internal quotation marks and citation omitted). For the reasons that follow, we

will reverse the judgment of the District Court.

       Winters applied for disability insurance benefits and SSI in June of 2002. She

alleged disability on the basis of severe depression, panic and anxiety attacks, and

agoraphobia. These psychiatric disorders were diagnosed by Dr. Brenda Freeman in June

of 2001 after Winters was involuntarily admitted to Mercy Providence Hospital for

treatment. At that time, Winters’s ability to function was severely compromised as her

GAF was assessed at 25.2 She responded to treatment with medications and therapy. At

the time of her discharge eight days later, Winters’s GAF had improved to 45, which



  1
   The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. §
405(g). Appellate jurisdiction exists under 28 U.S.C. § 1291.
  2
    GAF is an acronym which refers to an individual’s score on the Global Assessment of
Functioning Scale. American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders, 32 (4th ed. Text Revision 2000) (hereinafter referred to as DSM-IV-
TR). The scale is used to report the “clinician’s judgment of the individual’s overall level
of functioning” in light of his psychological, social, and occupational limitations. Id. The
GAF ratings range from 1 to 100. A score of 25 means that the individual is experiencing
a “serious impairment in communication or judgment . . . or [an] inability to function in
almost all areas. . . .” Id. at 34.

                                             2
indicated that she continued to experience “serious symptoms . . . or any serious

impairment in social, occupational, or school functioning. . . .” DSM-IV-TR at 34.

       Dr. Freeman continued to treat Winters after her discharge. A progress note dated

May 3, 2002, indicated that Winters continued to experience a depressed mood, suicidal

plans, and anxiety with panic attacks. Her GAF remained low at 40, indicating that she

had “some impairment in reality testing or communication . . . or major impairment in

several areas, such as work or school, family relations, judgment, thinking or mood. . . .”

Id.

       A month later, Dr. Freeman completed a Pennsylvania Department of Public

Welfare form. Dr. Freeman confirmed that Winters’s diagnoses were “major depression,

recurrent, severe without psychosis,” and she explained that Winters was unable to work

in any capacity without medication because of her depressive symptoms, anxiety, and a

fear of leaving her house. Winters’s medication included Effexor and Trazadone, two

antidepressants, and Cogentin, an antiparkinsonnian drug. Dr. Freeman checked the box

on the form which indicated that Winters was “permanently disabled” by a physical or

mental condition which precluded any gainful employment and that she was a candidate

for disability insurance benefits or SSI.

       In October of 2002, Winters was evaluated by Steven Pacella, a psychologist. He

documented her past psychiatric history and noted that she was maintained on Effexor,

Trazadone, and Cogentin, as well as Zoloft, another antidepressant. Winters advised Dr.



                                             3
Pacella that she did not consider herself capable of working because she “still can’t go

places.” Pacella’s mental assessment indicated that Winters was alert, fully oriented,

appropriately responsive, non-delusional, and clear in her thinking with adequate recall.

He opined that she was able to understand and follow instructions, had the ability to work

within a set schedule and attend to a task. He acknowledged that Winters was “poorly

tolerant of adult stress, pressure and responsibility and seems to relate to others in an

overly-dependant manner.”

       In March 2003, Dr. Freeman completed yet another form relative to Winters’s

application for disability insurance and SSI benefits. Dr. Freeman indicated that she saw

Winters every eight weeks and that a psychiatric nurse saw her between these visits. In

addition, Winters was seeing an individual therapist on an intermittent basis. Her

diagnoses were unchanged and her condition was “chronic and only partially responsive

to current treatment.” Winters’s medication regime included Celexa and Trazadone, both

of which were antidepressants, and these medications, according to Dr. Freeman, yielded

“about 50% reduction of symptoms.” Dr. Freeman explained that Winters had been

compliant with her treatment, but that trials of the medications Effexor, Zoloft,

Wellbutrin, Vistaril, and Prozac either had resulted in severe side effects or a lack of

efficacy.

       Dr. Freeman further explained that Winters’s symptoms affected her ability to

work because she had “continued, moderate to marked panic attacks, anxiety, [and]



                                              4
depression.” Dr. Freeman opined that Winters was unable to “work in any capacity at this

time.” Although Dr. Freeman indicated on an accompanying form that Winters could

follow rules, use her judgment, and function independently to a degree, Dr. Freeman

documented that Winters was limited by her depressed mood, panic attacks, agoraphobia,

crying spells, passive death wishes, low self-esteem, anticipatory anxiety, and avoidant

behavior, as well as a decreased ability to concentrate. In fact, Winters’s GAF remained

in the low-to-mid forties, and she continued to experience serious symptoms affecting her

ability to function socially and occupationally. DSM-IV-TR at 34.

       In addition to the forms completed by Dr. Freeman concerning Winters’s ability to

work, Dr. Freeman submitted a three page psychiatric evaluation update. Dr. Freeman

documented that Winters

       reports continued symptoms of depression and anxiety. Her mood remains
       depressed with passive death wishes and without active suicidal ideations,
       planned or intent to harm her self. She feels hopeless and helpless with her
       situation because of these ongoing Panic Disorder symptoms. She has low
       self-esteem and very limited support network because she has difficulty
       leaving the house. Her Panic Disorder consists of panic attacks, both
       precipitated and spontaneous, and she has to plan several days before she
       can go out of the house and then she needs someone with her. She has
       anticipatory anxiety and avoidant behaviors and when she does have a panic
       attack she has severe anxiety, heart palpitations, nausea, feeling a lump in
       her throat, fearfulness and it takes up to twenty-minutes of slow deep
       diaphragmatic breathing for the attack to resolve. She reports that during
       these attacks she cannot speak and is usually unable to focus on anything
       but her breathing. . . . She also does report symptoms of social phobia and
       states that it is difficult for her to be around people that she does not know,
       but she is trying to work on this and she is hopeful that she can begin to
       attend a Woman’s Support Group here at our agency.



                                             5
Dr. Freeman opined that Winters was unable to work in any capacity because of her

depression and anxiety. She further opined that “[a]t this point her main goal is to reduce

anxiety enough to begin attending further treatment programs at this agency.”

       Despite Dr. Freeman’s thorough evaluation, the Administrative law Judge (“ALJ”)

accorded minimal weight to Dr. Freeman’s opinion, concluding that it was contradicted

by other evidence, particularly Dr. Freeman’s report that Winters’s condition had

improved. Although Winters challenged the ALJ’s decision, the District Court affirmed

the denial of benefits. We will reverse.

       It is well-settled that a treating physician’s opinion deserves great weight because

that opinion

       reflect[s] expert judgment based on a continuing observation of the
       patient’s condition over a prolonged period of time. An ALJ may reject a
       treating physician’s opinion outright only on the basis of contradictory
       medical evidence, but may afford a treating physician’s opinion more or
       less weight depending upon the extent to which supporting explanations are
       provided.

Plummer, 186 F.3d at 429 (internal quotations marks and citation omitted).

       As Winters’s treating physician, Dr. Freeman evaluated Winters every eight weeks

over the course of two years, carefully titrating her medications and adjusting her therapy.

Dr. Freeman acknowledged that Winters had improved after several medication trials, but

noted that her current medication regime reduced her symptoms by only 50%. In

addition, Winters’s agoraphobia continued to hinder her progress as she was reluctant to

leave her house, needing several days to plan any excursion. As a result, Dr. Freeman had

                                             6
shifted the focus of Winters’s treatment to reducing her anxiety sufficiently so she could

begin to leave her home to attend further therapy on site at the agency. Dr. Freeman’s

March 2003 report explained how Winters’s continued symptomology adversely affected

her ability to work. Because Dr. Freeman’s detailed report was the most recent medical

evidence concerning Winters’s psychiatric status in the record and was uncontradicted, it

should not have been discounted by the ALJ. Plummer, 186 F.3d at 429. For that

reason, we conclude that the ALJ erred by relying on the vocational expert’s testimony

concerning Winters’s residual functional capacity inasmuch as it was based on Dr.

Pacella’s earlier report which not only failed to take into account Winters’s inability to

freely leave her home, but also did not reflect the extent of Winters’s symptomology on

her current medication regime. See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.

1984) (instructing that it is error to rely on a vocational expert’s testimony if the

hypothetical does not accurately portray the individual’s physical and mental

impairments).

       Accordingly, we conclude that the ALJ’s decision is not supported by substantial

evidence. We will reverse the order of the District Court, and will remand for further

proceedings consistent with this opinion.




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