                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2207




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-2207


                             OSVALDO IRIZARRY, JR.,

                                               Appellant

                                          v.

                    JOANNE B. BARNHART, COMMISSIONER
                           OF SOCIAL SECURITY



                     Appeal from the United States District Court
                      for the Western District of Pennsylvania
                        (D.C. Civil Action No. 05-cv-00231)
                      District Judge: Honorable Alan N. Bloch


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 19, 2007

               Before: McKEE, AMBRO and MICHEL * , Circuit Judges

                                (filed: May 23, 2007 )




                                      OPINION




   *
    Honorable Paul R. Michel, Chief Judge, United States Court of Appeals for the
Federal Circuit, sitting by designation.
AMBRO, Circuit Judge:

       Osvaldo Irizarry, Jr. appeals from an order of the United States District Court for

the Western District of Pennsylvania affirming the Commissioner of Social Security’s

decision to deny his application for Supplemental Security Income (“SSI”) benefits.

Irizarry asserts that the decision of the Administrative Law Judge (“ALJ”) is unsupported

by substantial evidence. For the reasons that follow, we vacate the District Court’s order

and remand for further proceedings.

I. Facts and Procedural History:

       Irizarry filed an application for SSI benefits alleging disability due to anxiety and

depression beginning in August 2002. After his application was denied, Irizarry

requested and was granted a hearing before an ALJ. The ALJ denied Irizarry’s

application, finding that Irizarry was not disabled and could perform a significant number

of jobs in the national economy. Irizarry requested the Appeals Council to review the

ALJ’s decision. It declined and the ALJ’s decision became the final agency decision.

Irizarry then filed for review in the United States District Court for the Western District

of Pennsylvania. On cross-motions for summary judgment, that Court ruled against

Irizarry, who now appeals to us.

       Because we write solely for the parties, we note only those facts relevant to our

analysis. Irizarry was 20 years old at the onset date of his alleged disability. Until

January 2002, he had served 14 months in prison. After his release, he worked as a stock



                                              2
clerk, telemarketer, and a cook. At each of these jobs, he was employed for no more than

two months.

       While incarcerated, Irizarry received treatment and medication for depression and

anxiety. After his release, he sought treatment from the Washington Hospital and the

Washington Communities MH/MR Center (the “Washington Center”). He was diagnosed

with major depressive disorder, severe and generalized anxiety disorder, and anti-social

personality disorder. The doctors assigned him global functioning scores (“GAFs”)

ranging from 30 to 37.1 At the Washington Center, he reported a history of suicide

attempts, including one documented attempt involving an overdose of medication and

cleaning fluid.

       In February 2002, Irizarry began counseling and medication management with Dr.

Leyla Somen, a psychiatrist. Although Irizarry reported hallucinations, Dr. Somen noted

that this claim was “not convincing.” She assigned a GAF score of 47. At the end of

February, she instructed Irizarry to stop taking his medications because he was

experiencing side effects. After being off his medication for one month, he reported

severe depression, and Dr. Somen referred him to a hospital for evaluation.

       Irizzary went to an emergency room threatening to commit suicide in April 2002.



   1
    Global functioning or global assessment functioning scores are used by mental health
clinicians and doctors to rate the social, occupational and psychological functioning of
adults. See 65 F.R. 50746-01, 50764 – 65 (Social Security Administration Rules and
Regulations). It is endorsed by the American Psychiatric Association and assesses an
individual’s functional abilities and limitations. See id.

                                            3
He was admitted and treated with anti-depressant medication. On his discharge, he was

given prescriptions for anti-anxiety agents and anti-depressants. His GAF rating on

discharge was 46.

         In October 2002, Irizarry underwent a psychological evaluation with Dr. John

Rohar at the request of the State Bureau of Disability determinations. Dr. Rohar found

Irizarry to have a flat affect and to be mildly to moderately depressed. On examination,

Dr. Rohar noted that Irizarry had intact thought processes and demonstrated average

intelligence. According to Dr. Rohar, Irizarry had a “fair” ability to relate to co-workers,

use judgment, and interact with supervisors. In the end, Dr. Rohar assessed a GAF rating

of 55.

         Dr. Edward Zuckerman, a state agency psychologist, in December 2002 reviewed

the evidence of record and completed an assessment of Irizarry’s mental impairments.

Dr. Zuckerman concluded that Irizarry would have moderately limited ability to maintain

attention and concentration for extended periods. Further, Dr. Zuckerman noted no other

significant limitations.

II. Standard of Review

         In an appeal of a District Court’s decision affirming the Commissioner’s denial of

SSI benefits, we exercise plenary review over legal issues.2 Allen v. Barnhart, 417 F.3d




   2
   The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g).
We exercise appellate jurisdiction under 28 U.S.C. § 1291.

                                             -4-
396, 398 (3d Cir. 2005). We review the ALJ’s factual findings to determine whether they

are supported by substantial evidence. Id. “‘Substantial evidence’ has been defined as

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

accept as adequate to support a conclusion.’” Reefer v. Barnhart, 326 F.3d 376, 379 (3d

Cir. 2003) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Where the ALJ’s

findings of fact are supported by substantial evidence, we are bound by those findings,

even if we would have decided the factual inquiry differently.” Fargnoli v. Massanari,

247 F.3d 34, 38 (3d Cir. 2001).

III. Discussion

       Under the Social Security Act, the Social Security Administration is authorized to

pay SSI benefits to persons who are “disabled.” 42 U.S.C. § 1382 . A person is disabled

“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 substantial gainful work which exists in the national

economy. . . .” 42 U.S.C. § 423(d)(2)(A); see also Barnhart v. Thomas, 540 U.S. 20,

21–22 (2003).

       To determine disability, the Commissioner uses a five-step sequential evaluation

process. 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.

1999). If a finding of disability or non-disability can be made at any point in the

sequential analysis, the Commissioner does not review the claim further. 20 C.F.R.



                                             -5-
§ 404.1520(a)(4).3 Here, the focus is on steps three, four, and five.

       The Commissioner, in step three, consults Appendix 1 of the regulations to

determine whether the claimant’s impairment or its equivalent is listed. 20 C.F.R. §

404.1520(d); see 20 C.F.R. Pt. 404, Subpt P, App.1 (listing impairments presumed to be

severe enough to preclude substantial gainful activity). If a claimant does not suffer from

a listed impairment or its equivalent, the analysis proceeds to steps four and five. In step

four, the Commissioner determines whether, despite the severe impairment, the claimant

has the residual functional capacity to perform her past relevant work. 20 C.F.R.

§ 404.1520(e). She bears the burden of demonstrating an inability to return to do so.

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 118 (3d Cir. 2000). At step five, the

burden shifts to the Commissioner. Here the Commissioner must demonstrate that the

claimant is capable of performing other available work in the national economy in order

to deny a claim of disability. 20 C.F.R.§ 404.1520(f). To make this determination, the

Commissioner considers a claimant’s residual functional capacity along with her age,

education, and past work experience. 20 C.F.R. § 404.1520(g); Burnett, 220 F.3d at 118.




   3
     At step one, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. 20 C.F.R. § 404.1520(a). If so, the claimant is not disabled
regardless of her medical condition. 20 C.F.R. § 404.1520(b). If not engaged in
substantial gainful activity, step two requires the Commissioner to consider whether a
“severe” impairment or combination of impairments exists that significantly limit the
claimant’s physical or mental ability to do basic work activities. 20 C.F.R § 404.1520(c).
If a claimant’s condition is deemed severe, the analysis continues to step three. See 20
C.F.R. § 404.1520(d).

                                             -6-
        Irizarry claims that the ALJ erred at steps three and four because the ALJ’s

findings are not supported by substantial evidence. Specifically, Irizarry argues that the

ALJ failed to: (1) follow our Court’s holding in Cotter v. Harris, 642 F.2d 700 (3d Cir.

1981), by not explaining his rejection of documented medical evidence or otherwise

affording proper weight to Irizarry’s treating medical sources; and (2) interpret properly

the consultative psychiatrists ratings of “fair” with regard to Irizarry’s occupational

ability.4

        The ALJ must consider all evidence and is required to state the reasons for his

decision to ensure meaningful judicial review. Cotter, 642 F.3d at 704; see also Wier v.

Heckler, 734 F.2d 955, 956 (3d Cir. 1984). Here, the ALJ only discussed medical

evidence offered by Dr. Rohar. The ALJ’s opinion notes that Dr. Rohar assessed

Irizarry’s GAF at 55. Notably absent from this discussion are the two earlier lower GAF

scores found by Dr. Somen and the Washington Center. Further, the ALJ’s opinion omits

any discussion of Irizarry’s treatment at the Washington Center or with Dr. Somen.5

These omissions fail to follow Cotter’s mandate that an ALJ’s rejection of treating



   4
    We find it unnecessary to address Irizarry’s step five argument because we hold that
the ALJ erred at an earlier stage of the sequential analysis.
   5
     The Government correctly points out that most of the medical evidence related to
Irizarry’s mental impairments predates the alleged onset of disability. If this fact were
relevant to the ALJ’s rejection of medical evidence, then the ALJ needs to state it to
ensure meaningful judicial review. See Cotter, 642 F.3d at 704. Further, the facts
indicate that this alleged onset disability date was chosen because Irizarry did not need
disability benefits until August 2002 when he was terminated from his last job.

                                             -7-
medical sources be explained.

                                           *****

       Because the ALJ did not discuss all of the relevant evidence or explain his

rejection of medical evidence offered by Irizarry as he was required to do under Cotter,

his decision is unsupported by substantial evidence. We therefore vacate the District

Court’s grant of summary judgment in favor of the Commissioner, and remand for further

proceedings consistent with this opinion. “On remand, the ALJ must consider and make

specific findings as to all of the relevant probative medical evidence. . . . Further, to the

extent that the ALJ reaches a finding contradictory to that of [Irizarry’s] treating

physicians, he must explain the reasoning behind such a finding, including reconciling

conflicts and discussing how and why probative evidence supporting [Irizarry’s] claim

was discounted or rejected.” Fargnoli, 247 F.3d at 44.




                                              -8-
