IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LUCRETIA PULOS, )

)

Plaintiff, )

)

)

v. ) Civil Action No. 09-142 Erie

)

MICHAEL J. ASTRUE, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., District Judge. 

Plaintiff, Lucretia Pulos (“Plaintiff”), commenced the instant action pursuant to 42 U.S.C.

§§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of

Social Security denying her claims for disability insurance benefits (“DIB”) and supplemental

security income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et

seq, and § 1381 et seq. Plaintiff filed applications for DIB and SSI on March 4, 2005, alleging

disability since February 10, 2001 due to obsessive compulsive disorder, depression, asthma,

back and knee pain and endometriosis (Administrative Record, hereinafter “AR”, 68-70; 94).1

Her applications were denied and she requested a hearing before an administrative law judge

(“ALJ”) (AR 59-64). A hearing was held before an administrative law judge (“ALJ”) on May 27,

2007 and following this hearing, the ALJ concluded that the Plaintiff was not entitled to a period

of disability, DIB or SSI under the Act (AR 12-20). Her request for review by the Appeals

Council was denied (AR 4-7), rendering the Commissioner’s decision final under 42 U.S.C. §

405(g). The instant action challenges the ALJ’s decision. Presently pending before the Court are

cross-motions for summary judgment. For the reasons set forth below, the Defendant’s motion

will be denied and the Plaintiff’s motion will be granted only to the extent she seeks a remand for

Plaintiff previously filed applications for DIB and SSI on February 23, 1993 which were 1

denied at the Agency level on October 13, 1993 (AR 12). She filed applications again on

October 24, 2002 which were denied on March 12, 2003 (AR 12). Plaintiff did not appeal these

denials (AR 12). 

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further consideration. 

I. BACKGROUND

Plaintiff was thirty-three years old on the date of the ALJ’s decision (AR 91). She is a

high school graduate but attended special education classes while in high school (AR 100). She

has past relevant work experience as a home health care attendant and fast food cashier (AR

102).

Plaintiff was seen on July 25, 2003 at Community Integration, Inc. for medication

management and was reportedly working three jobs at that time (AR 224). Plaintiff further 2

indicated that she was “doing well,” her moods were more stable and she denied any suicidal

thoughts (AR 224). On mental status examination, her mood, affect and cognition were reported

as normal, and she was pleasant and cooperative (AR 224). She was assessed with a Global

Assessment of Functioning (“GAF”) score of 55 (AR 165). 

3

Plaintiff presented to Millcreek Community Hospital on August 15, 2003 complaining of

suicidal thoughts related to child custody issues, health problems and a recent rape (AR 152-

155). She was transferred to the Stairways, Inc. residential unit where she spent three days

undergoing counseling and was prescribed Zoloft (AR 155-160). She was subsequently

discharged on August 18, 2003 in stable condition free of suicidal thoughts (AR 155).

Community Integration medication progress notes dated September 11, 2003 show that

the Plaintiff complained of anxiety and depression on that date (AR 223). On mental status

examination, her mood was depressed, her affect was anxious and she denied any suicidal

thoughts (AR 223). She was assigned a GAF score of 50 and her medication regimen stayed the

Plaintiff does not challenge the ALJ’s decision with respect to her alleged physical 2

impairments. Therefore, the Court’s discussion will be limited to the evidence relative to the

Plaintiff’s alleged mental impairments. 

The GAF score considers psychological, social, and occupational functioning on a 3

hypothetical continuum of mental health-illness. It represents “the clinician’s judgment of the

individual’s overall level of functioning.” See Diagnostic and Statistical Manual of Mental

Disorders: DSM-IV-TR 32 (4 ed. 2000). Scores between 51 and 60 indicate “[m]oderate th

symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate

difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or

co-workers).” Id. at 34. 

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same (AR 223). 

4

On November 18, 2003, Plaintiff reported to Community Integration that she was recently

promoted at work (AR 222). Her mood and affect were reported as normal and she was pleasant

and cooperative (AR 222). Plaintiff had no acute complaints and it was noted she was “doing

well” on Zoloft (AR 222). She was assessed a GAF score of 55 (AR 222). 

When seen on April 12, 2004, Plaintiff requested a psychiatric evaluation (AR 221). It

was noted that she had no acute depressive symptoms, but “admit[ted]” to unspecified obsessive

compulsive behavior (AR 221). Her mood, affect and behavior were all within normal limits, yet

she was assessed a GAF score of 50 (AR 221).

Plaintiff subsequently underwent a psychiatric evaluation on April 28, 2004 conducted by

Jaime Ayala, M.D. at Safe Harbor Behavioral Health (AR 219-220). Dr. Ayala noted that the

Plaintiff had been diagnosed with major depressive disorder, recurrent (AR 219). It was further

noted that the Plaintiff had attended individual and group therapy sessions in earlier years but

became “disenchanted” with those services (AR 219). Dr. Ayala indicated that the Plaintiff was

quite active with both of her children who were doing very well in school, and also assisted her

sister with one of her children (AR 219). Plaintiff stated that she was not able to work beyond 15

hours per week because she lacked daycare services for her children (AR 219). Dr. Ayala

reported that the Plaintiff managed to do well despite her depressive outlook of a “dysthymic

nature” (AR 219). 

In Dr. Ayala’s mental status examination of the Plaintiff, he noted that she was dysphoric5

and preoccupied with ensuring an adequate support system for her children (AR 219). She

denied suffering from any sleep disorder or having suicidal thoughts (AR 219). She

acknowledged irritability and at times being short-tempered with her children, but recognized

this as a sign of stress (AR 219). Dr. Ayala reported that the Plaintiff appeared “motivated for

Scores between 41 and 50 indicate “[s]erious symptoms (e.g., suicidal ideation, severe 4

obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or

school functioning (e.g., no friends, unable to keep a job).” Id. at 34. 

“Dysphoria” is a “mood of general dissatisfaction, restlessness, depression, and anxiety;

5

a feeling of unpleasantness or discomfort.” Stedmman’s Medical Dictionary at 116700 (27 ed. th

2000). 

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vocational rehabilitation” (AR 219). He diagnosed the Plaintiff with “[m]ajor [d]epression,

recurrent, in partial remission, [r]ule out [d]ysthymic [d]isorder,” and assigned her a GAF score

of 50 (AR 220). Dr. Ayala recommended that her medications remain at the same level and that

she consider a referral to vocational rehabilitation (AR 220). He characterized her prognosis as

“favorable” (AR 220). 

When seen for medication management on July 12, 2004, the Plaintiff was pleasant and

cooperative, and her mood, affect and cognition were within normal limits (AR 218). It was

noted that she was doing well on Zoloft and she was assessed a GAF score of 55 (AR 218). 

On October 12, 2004, Plaintiff reported that her depression continued and she was

currently homeless but staying with friends (AR 217). It was noted that she was pleasant and

cooperative and exhibited a “good attitude” (AR 217). Her mood, affect and cognition were

within normal limits (AR 217). No acute psychotic or depressive state was observed or reported,

and the Plaintiff was stable with a GAF score of 50 (AR 217). She was encouraged to stay on

her medication and return for follow up in three months (AR 217). 

When seen at Safe Harbor Behavioral Health on January 5, 2005, Plaintiff reported that

she was “overwhelmed” and homeless, and complained of increased depression, anxiety and

confusion (AR 216). She further reported she was in a shelter with no income and was unable to

work (AR 216). Her mood was reported as depressed, she exhibited an anxious affect and

displayed evidence of “thought blocking” (AR 216). She was assessed a GAF score of 45 and 6

encouraged to apply for temporary disability (AR 216).

When she returned on February 24, 2005, Plaintiff presented as depressed, anxious and

irritable but there was no evidence of thought blocking (AR 215). She continued to complain of

depression and was distressed about her current living situation (AR 215). Plaintiff reported

increased mood swings, but denied suffering from any suicidal or homicidal thoughts (AR 215). 

Her Zoloft dosage was decreased, Wellbutrin was added for depression and Topamax for mood

stability (AR 215). She was assessed with a GAF score of 45 to 50 (AR 215).

“Thought blocking” occurs “when a person stops speaking abruptly in the middle of a 6

thought.” http://www.nimh.nih.gov/health/publications/schizophrenia/complete-index.shtml

(last visited June 7, 2010).

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On April 20, 2005, Plaintiff underwent a psychological evaluation performed by Isis

Kuczaj, Clinical Psychology Intern, at Saint Vincent Outpatient Behavioral Services, who noted

that the Plaintiff began treatment at the facility in February 2005 for depression and a “lying

disorder” (AR 229). Plaintiff reportedly told a friend she had cancer and was undergoing

chemotherapy in order to induce the friend to offer her a place to stay (AR 236). She indicated

that her dishonesty had “gotten her into trouble” almost causing her to lose custody of her

children (AR 229). Ms. Kuczaj reported that the Plaintiff was pleasant and cooperative and her

thought processes were “connected and organized” (AR 230). Ms. Kuczaj noted that the Plaintiff

showed “few signs of remorse” for her actions (AR 230). 

Ms. Kuczaj administered the Minnesota Multiphasic Personality Inventory-2 (“MMPI2”), and concluded that the results were invalid because, in her view, the Plaintiff answered items

in such a way as to present herself with severe psychopathology (AR 230). She noted that the

Plaintiff’s production of a “fake-bad” MMPI-2 profile was consistent with her compulsive lying

problem (AR 230). Ms. Kuczaj found that the Plaintiff’s problems would be difficult to address

in treatment because the Plaintiff felt compelled to exaggerate her condition to therapists (AR

230). Due to the production of what she considered to be an invalid profile, Ms. Kuczaj did not

render a diagnostic impression (AR 230).

On May 23, 2005, Gloria Kieffer, M.A., a psychologist at Saint Vincent, reported that the

Plaintiff had been in outpatient counseling since January 2005 for depression and by the

Plaintiff’s definition, a “lying disorder” (AR 232). According to Ms. Kieffer, the Plaintiff

seemed remorseful for her pattern of dishonesty and its consequences (AR 232). It was noted

that the Plaintiff had a documented history of extensive childhood abuse and numerous foster

placements (AR 232). Ms. Kieffer reported that the Plaintiff’s treatment had been sporadic with

“very inconsistent involvement” and that she had only kept 9 out of 16 scheduled appointments

(AR 232). She indicated that the Plaintiff was a poor candidate for ongoing treatment due to her

non-compliance with Saint Vincent’s “no show” policy (AR 232). Ms. Kieffer diagnosed the

Plaintiff with major depressive disorder, in partial remission, post traumatic stress disorder and

personality disorder, not otherwise specified (AR 232). She assigned her a GAF score of 60 (AR

232).

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On July 8, 2005, Ray Milke, Ph.D., a state agency reviewing psychologist, completed a

Mental Residual Functional Capacity Assessment form, and found that the Plaintiff was not

significantly limited in a number of areas, but was moderately limited in her ability to

understand, remember and carry out detailed instructions; maintain attention and concentration

for extended periods; perform activities within a schedule, maintain regular attendance and

maintain punctuality; and complete a normal workday/workweek without interruptions from

psychologically based symptoms (AR 279-280). Dr. Milke also concluded that she was

moderately limited in her ability to interact appropriately with the general public; accept

instructions and respond appropriately to criticism from supervisors; get along with co-workers;

respond appropriately to changes in the work setting; and set realistic goals or make plans

independently of others (AR 280). 

Dr. Milke found that the Plaintiff could perform simple, routine, repetitive work in a

stable environment and remained capable of understanding and remembering instructions,

concentrating, interacting appropriately with people and adapting to changing activities within

the workplace (AR 281). He noted that she had a low frustration tolerance with a history of

impulsive and distractive behavior, but could work within a schedule and at a consistent pace

(AR 281). He further found she could function in production oriented jobs requiring independent

decision-making (AR 281). Dr. Milke indicated that the Plaintiff’s limitations in all areas were

significant, “but not so severe as to preclude performance of routine work tasks” (AR 281). Dr.

Milke relied, in part, on a report prepared by Ramin Sassani, D.O., who performed a consultative

physical evaluation of the Plaintiff on June 2, 2005 (AR 258-265). With respect to her

depression, Dr. Sassani observed: 

Depression, currently controlled with current medications. The

patient is seeing Dr. Sue at the State Behavioral Health. The

obsessive-compulsive disorder is continuous. It does not seem to

be disabling to the patient. She is able to function normally in

society. 

(AR 261). Dr. Milke concluded that the Plaintiff could “meet the basic mental demands of

competitive work on a sustained basis despite the limitations resulting from her impairments”

(AR 281).

On December 16, 2005, Plaintiff was psychiatrically evaluated by Matthew Sipple, D.O.

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at Stairways Behavioral Health Outpatient Clinic (AR 315-318). Plaintiff reported a history of

sexual abuse as a child and physical abuse as an adult (AR 316). She relayed her history of

mental health treatment, stating that she left Safe Harbor because she was dissatisfied with her

treatment (AR 316). She reported a history of depression, difficulty sleeping, guilt over

traumatic experiences in her past, irritability, racing thoughts and rapid mood changes (AR 315). 

Plaintiff further reported multiple stressors, including problems with her landlord (AR 315).

On mental status examination, Dr. Sipple reported that the Plaintiff was appropriately

dressed and alert with normal speech (AR 317). Her affect was restricted and at times tearful

(AR 317). Her thought process was organized and relevant, but her thought content was

“positive for guilt” (AR 317). Her short and long-term memory were intact, and her insight and

judgment were fair (AR 317). Dr. Sipple diagnosed her with a “[m]ood disorder not otherwise

specified[,] [p]osttraumatic stress disorder[,] [g]eneralized anxiety disorder[,] [r]ule out bipolar

disorder[,] [and] [r]ule out dysthymia” (AR 317). He assigned her a GAF score of 50 and

continued her medication regimen (AR 318). Plaintiff refused to attend group therapy, but

agreed to follow up with individual therapy to address her multiple psychosocial stressors (AR

318). 

On February 24, 2006, Stairways Outpatient progress notes reflect that the Plaintiff was at

the Crisis Residential Unit for five days from February 13, 2006 to February 17, 2006 (AR 308). 

She reported being “stressed out” (AR 308). She indicated she had sleep problems, as well as

decreased energy (AR 308). Her affect and mood were reported as depressed and she claimed to

have suicidal thoughts (AR 308). Her Zoloft and Wellbutrin dosages were increased and she was

instructed to go to the hospital if her suicidal thoughts increased (AR 308). 

On May 10, 2006, Plaintiff reported decreased sleep and increased irritability (AR 306). 

Dr. Sipple reported that her mood and affect were depressed and she was irritable (AR 306). She

denied suffering from any suicidal/homicidal thoughts and denied having any delusions or

hallucinations (AR 306). She exhibited a logical thought process (AR 306). Dr. Sipple increased

her Zoloft dosage and continued her on Wellbutrin (AR 306). 

When seen by Dr. Sipple on October 4, 2006, Plaintiff reportedly felt better and was less

depressed (AR 305). There were no reported problems with sleep or her appetite, and Dr. Sipple

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found her affect was euthymic and her mood was “ok” (AR 305). She denied any suicidal or

homicidal thoughts and had no illusions, delusions or hallucinations (AR 305). He found she

was tolerating her medications “well” and increased her Zoloft dosage (AR 305).

Plaintiff telephoned Stairways on December 13, 2006 complaining of increased

depression and “severe flashbacks” (AR 304). She claimed she had called “crisis” five times and

was scheduled to begin classes at the Crime Victim Center (“CVC”) on December 15, 2006 (AR

304). Plaintiff refused an appointment, but was instructed by the nurse to go to the emergency

room if her symptoms increased (AR 304). 

On January 5, 2007, Plaintiff was seen by Dr. Sipple and reported multiple psychosocial

stressors (AR 304). Dr. Sipple reported that her mood was depressed but her affect was slightly

improved (AR 304). She had no suicidal/homicidal thoughts and denied suffering from any

delusions, illusions or hallucinations (AR 304). Her Zoloft was increased and she was advised to

continue therapy (AR 304). 

Plaintiff was seen by Dr. Sipple, along with her intensive case manager, on April 2, 2007

(AR 303). Plaintiff claimed she had been sexually assaulted by her ex-boyfriend (AR 303). She

reportedly filed charges and was undergoing counseling at CVC (AR 303). Dr. Sipple reported

that her affect was tearful, she was depressed and she had passive suicidal thoughts (AR 303). 

Her Zoloft dosage was increased and she was instructed to contact “crisis” or go to the hospital if

her symptoms worsened (AR 303). 

Finally, on April 18, 2007, Dr. Sipple completed a form entitled “Mental Abilities and

Aptitudes Needed to do Unskilled Work” and opined that the Plaintiff could not: (1) maintain

attention for extended periods; (2) maintain regular attendance and be punctual; (3) sustain an

ordinary routine without special supervision; (4) work in coordination with or proximity to others

without being distracted; (5) complete a normal workday and workweek without interruptions

from psychologically based symptoms and perform at a consistent pace; (6) accept instructions

from supervisors and respond appropriately to criticism; and (7) get along with co-workers or

peers without (unduly) distracting them or exhibiting behavioral extremes (AR 314). Dr. Sipple

indicated that his assessment of the Plaintiff was based upon “mental status examinations,

observation of the patient, clinical history and/or review of symptoms/signs” (AR 314).

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Plaintiff testified at the administrative hearing that she lived with her two children ages

twelve and nine (AR 28-29). She claimed an inability to work because she was “very nervous

around other people” and had an aversion to being “yelled at” (AR 32-33). Plaintiff admitted

that she falsely claimed to have cancer so that a friend would offer her a place to live (AR 33-34).

With regard to her symptoms caused by her mental health impairments, the Plaintiff

testified that she had more bad days than good (AR 41). She indicated she frequently cried, did

not leave her home and had concentration problems (AR 41-42). She also claimed that she was

unable to continue working at Arby’s because she could not tolerate “stress from other people”

(AR 42). She recounted a history of frequent nightmares relating to her past history of abuse

(AR 43). Plaintiff stated that on a typical day she cared for her children, attended appointments

and cleaned her house (AR 44). She also reported that she maintained a journal as suggested by

her psychiatrist, watched television, helped her children with their homework and prepared meals

(AR 44). 

Cassie Mierke, from Case Management Support Services, testified that she had been the

Plaintiff’s mental health intensive case manager since March 28, 2005 upon referral by Safe

Harbor Behavioral Health (AR 46-47). Ms. Mierke stated that she had a Bachelors degree in

Criminal Justice and over fourteen years experience working with individuals with mental health

disorders (AR 49). She testified that in order for an individual to qualify for support services,

such individual must have a diagnosis of a serious mental illness with a GAF score of 60 or

below (AR 47). She stated that she had contact with the Plaintiff at least once per week and

sometimes more if the Plaintiff felt overwhelmed or needed assistance accessing community

resources (AR 47). Ms. Mierke had frequent phone contact with the Plaintiff and saw her

physically two to three times per month depending upon her needs (AR 47). She testified that

currently she was in the process of assisting the Plaintiff deal with the sexual assault she had

endured (AR 47). Ms. Mierke indicated that the Plaintiff would not consistently attend her

therapy appointments without encouragement (AR 48). 

Ms. Mierke characterized the Plaintiff’s emotional state as “fragile” and stated that she

had difficulty working through every day problems (AR 48). For instance, Ms. Mierke indicated

that the Plaintiff had difficulty keeping track of appointments and completing applications for

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financial programs in the community (48). Ms. Mierke was of the opinion that the Plaintiff could

not “consistently” maintain attendance or “handle” a job, and would be unable to focus and

concentrate on the task at hand (AR 49). Ms. Mierke stated that she was aware of the Plaintiff’s

fabrication relative to her physical health, but that the Plaintiff acknowledged that her conduct

was “very wrong” (AR 49).

The ALJ asked Nancy Harter, the vocational expert, to assume an individual of the same

age, education and work experience as the Plaintiff, who was able to perform light exertional

work, and who was further limited to simple one- or two-step tasks not involving frequent

contact with the public, supervisors or co-workers (AR54). The vocational expert testified that

such an individual could perform her past relevant work as a home health aid (AR 54). 

Following the hearing, the ALJ issued a written decision finding that the Plaintiff was not

entitled to a period of disability, DIB or SSI within the meaning of the Social Security Act (AR

12-20). Her request for an appeal with the Appeals Council was denied and she subsequently

filed this action. 

II. STANDARD OF REVIEW

The Court must affirm the determination of the Commissioner unless it is not supported

by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence does not mean a large or

considerable amount of evidence, but only “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65 (1988)

(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see Richardson v.

Parales, 402 U.S. 389, 401 (1971). It has been defined as less than a preponderance of evidence

but more than a mere scintilla. See Richardson, 402 U.S. at 401; Jesurum v. Secretary of the

United States Dept. of Health and Human Servs., 48 F.3d 114, 117 (3d Cir. 1995).

III. DISCUSSION

Title II of the Social Security Act provides for the payment of disability insurance

benefits to those who have contributed to the program and who have become so disabled that

they are unable to engage in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). Title

XVI of the Act establishes that SSI benefits are payable to those individuals who are similarly

disabled and whose income and resources fall below designated levels. 42 U.S.C. § 1382(a). A

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person who does not have insured status under Title II may nevertheless receive benefits under

Title XVI. Compare 42 U.S.C. § 423(a)(1) with 42 U.S.C. § 1382(a). In order to be entitled to

DIB under Title II, a claimant must additionally establish that his disability existed before the

expiration of his insured status. 42 U.S.C. § 423(a), (c). The ALJ found that the Plaintiff met the

disability insured status requirements of the Act through March 31, 2009 (AR 12). SSI does not

have an insured status requirement. 

A person is “disabled” within the meaning of the Social Security Act if he or she is

unable to “engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §

423(d)(1)(A). The Commissioner uses a five-step evaluation process to determine when an

individual meets this definition:

In the first two steps, the claimant must establish (1) that he is not

engaged in “substantial gainful activity” and (2) that he suffers

from a severe medical impairment. Bowen v. Yuckert, 482 U.S.

137, 140-41 (1987). If the claimant shows a severe medical

impairment, the [Commissioner] determines (3) whether the

impairment is equivalent to an impairment listed by the

[Commissioner] as creating a presumption of disability. Bowen,

482 U.S. at 141. If it is not, the claimant bears the burden of

showing (4) that the impairment prevents him from performing the

work that he has performed in the past. Id. If the claimant satisfies

this burden, the [Commissioner] must grant the claimant benefits

unless the [Commissioner] can demonstrate (5) that there are jobs

in the national economy that the claimant can perform. Ferguson

v. Schweiker, 765 F.2d 31, 37 (3 Cir. 1985). rd

Jesurum, 48 F.3d at 117. The ALJ resolved the Plaintiff’s case at the fourth step. The ALJ

found that, inter alia, the Plaintiff’s depression and anxiety were severe impairments, but

determined at step three that she did not meet a listing (AR 15-18). The ALJ further found she

had the residual functional capacity (“RFC”) to perform light work involving simple one- or twostep tasks not entailing frequent contact with the public, supervisors or co-workers (AR 18). The

ALJ concluded that her past relevant work as a home health attendant did not require the

performance of work-related activities precluded by the above limitations (AR 20). Again, I

must affirm this determination unless it is not supported by substantial evidence. See 42 U.S.C.

§ 405(g).

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Plaintiff argues that the ALJ erred in various particulars relative to her assessment of her

mental impairments. Specifically, the Plaintiff claims that the ALJ lacked a sufficient basis to

reject the opinion of her treating psychiatrist, Dr. Sipple, and that she erred in affording “scant

weight” to the testimony of Ms. Mierke solely on the basis that she was a “layperson.” She also

argues that the ALJ failed to address evidence pertaining to an alleged intellectual impairment.7

“A cardinal principle guiding disability eligibility determinations is that the ALJ accord

treating physicians’ reports great weight, especially ‘when their opinions reflect expert judgment

based on a continuing observation of the patient’s condition over a prolonged period of time.’” 

Morales v. Apfel, 225 F.3d 310, 317 (3 Cir. 2000) (quoting Plummer v. Apfel,186 F.3d 422, 429 rd

(3 Cir. 1999)). Where the opinion of a treating physician conflicts with that of a non-treating,

rd

non-examining physician, the ALJ may chose whom to credit but “cannot reject evidence for no

reason or for the wrong reason.” Plummer, 186 F.3d at 429 (citing Mason v. Shalala, 994 F.2d

1058, 1066 (3 Cir. 1993)). The ALJ must consider the medical findings that support a treating rd

This argument can be dispensed with in short order. Plaintiff argues that the ALJ failed 7

to address evidence pertaining to her alleged intellectual impairment. See Plaintiff’s Brief pp.

20-21. Plaintiff submitted to the Appeals Council a report from the Northwest Tri-County

Intermediate Unit dated March 2, 1992, showing her scores on the Weschler Intelligence Scale

for Children-Revised reflected a Verbal IQ of 68, a Performance IQ of 106, and a Full Scale IQ

of 85 (AR 336). This report, however was not included in the list of exhibits considered by the

ALJ in evaluating her claim. Because this exhibit was not considered by the ALJ, I cannot

consider this record in my substantial evidence review of the ALJ’s decision. See Matthews v.

Apfel, 239 F.3d 589 (3 Cir. 2001). Matthews held that in order to qualify for a remand option, rd

three requirements must be satisfied: (1) the additional evidence must be “new”; (2) it must be

“material” to determination of the claimant’s disability benefits claim; and (3) there must be

“good cause” for the claimant’s failure to present the new evidence in a prior proceeding. 

Matthews, 239 F.3d at 593 (“[W]hen [a] claimant seeks to rely on evidence that was not before

the ALJ, the district court may remand to the Commissioner but only if the evidence is new and

material and if there was good cause why it was not previously presented to the ALJ.”).

Here, I find that the Plaintiff has failed to demonstrate that remand is warranted for the

ALJ to consider this evidence. First, this report is not “new” since it was clearly in existence or

available to the Plaintiff at the time of the administrative hearing on May 24, 2007. See Sullivan

v. Finkelstein, 496 U.S. 617, 626 (1990) (evidence is “new” if it was “not in existence or

available to the claimant at the time of the administrative proceeding. ...”). Moreover, even if I

were to conclude that the evidence was material, the Plaintiff has failed to demonstrate good

cause for not presenting this evidence to the ALJ for consideration. 

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physician’s opinion that the claimant is disabled. See Adorno v. Shalala, 40 F.3d 43, 48 (3 Cir. rd

1994). In choosing to reject a treating physician’s opinion, an ALJ may not make “speculative

inferences from medical reports” and may reject “a treating physician’s opinion outright only on

the basis of contradictory medical evidence” and not due to his own credibility judgments,

speculation or lay opinion. Plummer, 186 F.3d at 429; Frankenfield v. Bowen, 861 F.2d 405, 408

(3 Cir. 1988). rd

The ALJ rejected Dr. Sipple’s opinion with respect to the Plaintiff’s functional limitations

because she “agree[d]” with the state agency psychologist’s assessment and because she could

not discern the “clinical basis for [Dr. Sipple’s] opinion in any of the medical records” or, in

what she characterized as his “cursory treatment notes” (AR 19-20) (emphasis in original). 

Specifically, the ALJ concluded: 

A State agency psychologist in July 2005 did not find that the

claimant’s mental illness disabled her (Exhibits 15F and 16F), and

I agree. On the other hand, Dr. Sipple declared on April 18, 2007

that she would be unable to: maintain attention for extended

periods; remember locations and work-like procedures; maintain

regular attendance, and be punctual within customary tolerances;

sustain an ordinary routine without special supervision; work in

coordination with or proximity to others without being distracted

by them; complete a normal workday and workweek without

interruptions from psychologically based symptoms; perform at a

consistent pace without an unreasonable number and length of rest

periods; accept instructions and respond appropriately to criticism

from supervisors; get along with co-workers or peers without

distracting them or exhibiting behavioral extremes (Exhibit 20F). 

Nevertheless, I fail to ascertain the clinical basis for his opinion in

any of the medical records, let alone in his cursory treatment notes. 

As he has not articulated a reasonable medical justification for

these serious limitations, I will not give them much weight.

(AR 19-20) (emphasis in original). Plaintiff contends that the ALJ failed to meaningfully

analyze, must less mention, significant portions of the Stairways treatment notes which arguably

lend clinical support for Dr. Sipple’s conclusions. The sum total of the ALJ’s analysis of the

Stairways treatment records is as follows: 

... The claimant has submitted records from the Stairway Clinic

covering the period from November 2005 to April 2007. The

claimant is listed as seeing a social worker therapist whose notes

are not included. She also cancelled or failed to appear for 7

appointments. On December 16, 2005, a mental status

examination by Dr. Sipple was unremarkable except for a

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Case 1:09-cv-00142-SJM Document 14 Filed 06/09/10 Page 13 of 18
constricted affect, tearfulness at times, and fair judgment and

insight. He diagnosed a mood disorder, a generalized anxiety

disorder, and a post-traumatic stress disorder. The claimant had

recounted certain ritualistic behavior that did not bother her. She

had alleged sexual abuse as a child and physical abuse as an adult. 

The remainder of the clinic record consists of very brief medication

checks containing few observations. The claimant was prescribed

increasing dosages of Zoloft (Exhibit 20F). In March 2007, she

reported that her ex-boyfriend had sexually assaulted her in her

sleep and that she was pressing charges (Exhibits 18F, 20F, and

22F). ...

(AR 17). 

 As to the ALJ’s alleged failure to adequately consider evidence in the Stairways records

supportive of Dr. Sipple’s opinion, the Plaintiff states in her Brief:

As to the actual content of the Stairways records, the ALJ

simply ignores pertinent portions. For example, as to Dr. Sipple’s

December 16, 2005 psychiatric evaluation, the ALJ acknowledges

that Dr. Sipple diagnosed mood disorder, post-traumatic stress

disorder (PTSD), and generalized anxiety disorder (Tr. 17, 317) yet

the ALJ finds that the plaintiff’s severe mental health impairments

consist of depression and anxiety only (Tr.15). As to PTSD, Dr.

Sipple notes that the plaintiff has a long history of being a victim

of violence and abuse–emotional, physical, and sexual (Tr. 316)

and that she has a lot of guilt over traumatic experiences in her past

along with nightmares about past traumatic experiences (Tr. 315). 

In addition to restricted and tearful affect, thought content is

positive for guilt (Tr. 317). Although ignored by the ALJ, Dr.

Sipple opined that the plaintiff’s GAF is 50 (Tr. 318). A GAF

scale of 41-50 indicates serious symptoms or “serious impairment

in social or occupational functioning (e.g., .. unable to keep a job)”

DSM-IV, 30-32 (4 Ed. 2000). There is no indication in the th

subsequent Stairways records that the plaintiff’s GAF scale has

risen above 50 (Tr. 303-320).

The ALJ does not even bother to review-let alone actually

consider-any subsequent Stairways records based on the ALJ’s

contention that the “remainder of the clinic record consists of very

brief medication checks and few observations” (Tr. 17). This is

not only improper reasoning by the ALJ, it is also outrageous. 

Because the ALJ did not see fit to mention mental health records

documenting treatment for a mentally ill claimant, a brief review of

such records follows. February 24, 2006, Stairways records

indicate that the plaintiff again was an inpatient at the Crisis

Residential Unit (CRU) from February 13, 2006-February 17,

2006. There is decreased sleep, decreased energy, and decreased

appetite. Affect and mood are depressed. There is suicidal

ideation (SI)). (Tr. 308) (the plaintiff was previously an inpatient at

this same unit in August 2003 (Tr. 155-160)). The dosages of

zoloft and wellbutrin were increased and the topamax was

continued (Tr. 308, 310). May 10, 2006 Stairways records note

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Case 1:09-cv-00142-SJM Document 14 Filed 06/09/10 Page 14 of 18
decreased sleep and increased irritability. Affect is depressed and

mood is irritable. The dosage of Zoloft was increased (Tr. 306,

310). Stairways records dated October 4, 2006 reveal that the

plaintiff is less depressed. The dosage of zoloft was still increased

(Tr. 305). The plaintiff was continued on wellbutrin and topomax

(Tr. 309). Stairways records dated December 13, 2006 reveal that

the plaintiff is having increased depression and severe flashbacks

(Tr. 304). On January 5, 2007 the plaintiff was seen at Stairways

with her intensive case manager. Mood was depressed. The

dosage of Zoloft was increased (Tr. 304). March 20, 2007

Stairways records indicate that the plaintiff called Stairways and

was very stressed because she could not find her drivers license

and Medicaid card (Tr. 303). The plaintiff was seen at Stairways

on April 2, 2007 along with her intensive case manager. Affect

was tearful and mood was depressed. The plaintiff stated that she

had been sexually assaulted. The dosage of zoloft was again

increased. The plaintiff was instructed that if her condition

worsens, she should contact crisis or [go to the] hospital (Tr. 303).

... 

Plaintiff’s Brief pp. 11-13. 

Here, I agree with the Plaintiff that the ALJ’s review of the Stairways records was

selective and incomplete. While consideration of all the evidence, of course, does not mean that

the ALJ must explicitly refer to each and every finding contained in a report, see Fargnoli v.

Massanari, 247 F.3d 34, 42 (3 Cir. 2001), an ALJ must consider the medical findings that rd

support a treating physician’s opinion. Adorno 40 F.3d at 48. Here, given the ALJ’s failure to

adequately address the import of the psychiatric records from Stairways summarized above, a

remand is required under the previously described case law.

Plaintiff also argues that the ALJ improperly rejected the testimony of Ms. Mierke, her

assigned intensive case manager. In affording her opinion “scant weight,” the ALJ stated: 

... Ms. Mierke testified that she has been the claimant’s case

manager since March 2005 and sees her 2-3 times a month. In her

opinion, the claimant is fragile and cannot focus. With all due

respect to the witness, her opinion is that of a layperson and, under

the circumstances of this case, I will award it the scant weight to

which it is entitled.

(AR 17-18). Plaintiff acknowledges that Ms. Mierke is not an “acceptable medical source,” but

argues that her opinion should have been considered pursuant to Social Security Ruling (“SSR”)

06-03p, 2006 WL 2320039. 

As a case manager, Ms. Mierke is considered an “other source” under 20 C.F.R. §§

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Case 1:09-cv-00142-SJM Document 14 Filed 06/09/10 Page 15 of 18
404.1513(d)(3); 416.913(d)(3) (other sources include “[p]ublic and private social welfare agency

personnel”). Social Security Ruling 06-03p clarifies how evidence from these sources should be

evaluated by an ALJ. While evidence from other sources cannot establish the existence of a

medically determinable impairment, such individuals are “valuable sources of evidence for

assessing impairment severity and functioning.” SSR 06-03p; 2006 WL 2329939 at *3. In

evaluating this evidence, the ALJ should consider the following factors: the nature and extent of

the relationship between the source and the individual; the source’s qualifications; the source’s

area of specialty or expertise; the degree to which the source presents relevant evidence to

support his or her opinion; whether the opinion is consistent with other evidence; and any other

factors that tend to support or refute the opinion. SSR 06-03p; 2006 WL 2329939 at *5.

Here, the ALJ discounted Ms. Mierke’s opinion solely on the basis that she was a

“layperson” (AR 18). There is no indication that the ALJ engaged in the analysis required by

SSR 06-03p in reaching such determination. In an analogous situation, the court in Magno v.

Astrue, 2010 WL 322144 (W.D.Pa. 2010) observed: 

In his decision, the ALJ makes no mention of SSR 06-03p, nor

does he engage in the analysis set forth therein. Instead, as

discussed above, the sole explicit reason he gives for assigning Mr.

Paul’s opinion limited weight was that Mr. Paul was neither a

psychologist nor a psychiatrist, i.e., that he was not an acceptable

medical source. He does not, for example, discuss the fact that Mr.

Paul had the opportunity to observe Plaintiff more frequently than

any other treating mental health professional mentioned in the

record. ... Likewise, he does not discuss Mr. Paul’s specialty or

how well the opinion was supported or explained. Accordingly,

the record is insufficient to determine whether the ALJ properly

weighed Mr. Paul’s opinion.

• • •

The weight given to Mr. Paul’s opinion is relevant for several

reasons. First, giving more weight to his opinion could obviously

impact the ALJ’s RFC determination. Perhaps even more

importantly, though, Mr. Paul, as noted, indicated that Plaintiff

could be expected to routinely miss three or more days of work a

month because of his mental impairments. ... The VE at each of the

two hearings in this case testified that if Plaintiff were to routinely

miss three or more days of work a month, it would preclude

Plaintiff from working at any job available in the economy. ... On

remand, the ALJ should specify whether he is accepting or

rejecting Mr. Paul’s contention regarding Plaintiff’s work

attendance and the basis for his decision.

16

Case 1:09-cv-00142-SJM Document 14 Filed 06/09/10 Page 16 of 18
The ALJ is not required to accept Mr. Paul’s opinion regarding

Plaintiff’s limitations and work attendance, but he is required to

adequately discuss the reason for weighing it as he has. Indeed,

SSR 06-03p makes it clear that the fact that an opinion comes from

an acceptable medical source may be a reason for giving that

opinion greater weight. The Court expresses no opinion as to what

weight should ultimately be given to Mr. Paul’s opinion; it

remands so that SSR [0]6-03p can be applied in making this

determination.

Magno, 2010 WL 322144 at *5-6 (footnotes omitted). A remand is similarly appropriate here. 

While the Regulation does not require that the ALJ specifically address each factor and

recognizes that “not every factor for weighing opinion evidence will apply in every case,” SSR

06-03p, 2006 WL 2329939 at *5, the ALJ’s proffered reason for according Ms. Mierke’s opinion

“scant weight” was patently inadequate. The ALJ is therefore directed on remand to evaluate

Ms. Mierke’s opinions consistent with SSR 06-03p.8

IV. CONCLUSION

An appropriate Order follows.

 

The ALJ is directed to address on remand the Plaintiff’s GAF score of 50 assessed by Dr. 8

Sipple at Stairways. Here, unlike the medical care provider in Gilroy v. Astrue, 351 Fed. Appx.

714 (3 Cir. 2009), Dr. Sipple did “express ... opinions regarding specific limitations” that rd

explained the basis for the Plaintiff’s GAF rating. Gilroy, 351 Fed. Appx. at 716. 

17

Case 1:09-cv-00142-SJM Document 14 Filed 06/09/10 Page 17 of 18
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LUCRETIA PULOS, )

)

Plaintiff, )

)

)

v. ) Civil Action No. 09-142 Erie

)

MICHAEL J. ASTRUE, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 9 day of June, 2010, and for the reasons set forth in the accompanying th

Memorandum Opinion, 

IT IS HEREBY ORDERED that the Plaintiff’s Motion for Summary Judgment [Doc. No.

7] is GRANTED only to the extent she seeks a remand for further consideration by the

Commissioner. The case is hereby REMANDED to the Commissioner of Social Security for

further proceedings consistent with the accompanying Memorandum Opinion. IT IS FURTHER

ORDERED that the Defendant’s Motion for Summary Judgment [Doc. No. 11] is DENIED. 

The clerk is hereby directed to mark the case closed. 

s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record. ____ 

 

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Case 1:09-cv-00142-SJM Document 14 Filed 06/09/10 Page 18 of 18