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Dolores Ahearn v. Commissioner of Social Security

February 27, 2012



Dolores Ahearn (the "Claimant"), appeals to the District Court from a final decision of the Commissioner of Social Security (the "Commissioner") denying her application for benefits. Doc. No. 1. Claimant argues that the final decision of the Commissioner should be reversed and remanded for an award of benefits because the Administrative Law Judge (the "ALJ") erred by:

1) failing to state with particularity the weight given and the reasons therefor to the opinions of two consultative examining physicians, Drs. Seifer and Vara; 2) finding that Claimant did not suffer from a severe mental impairment at step-two and by failing to incorporate the limitations therefrom into the ALJ‟s residual functional capacity assessment (the "RFC"); 3) failing to address or mention Claimant‟s fibromyalgia diagnosis; 4) finding Claimant‟s statements not credible; 5) relying exclusively on the opinion of the non-examining state-agency consultants to determine Claimant‟s RFC; and 6) finding that the Claimant could perform her past-relevant work without receiving testimony from a vocational expert (the "VE") regarding that work or otherwise classifying Claimant‟s past-relevant work. Doc. No. 21 at 1-22. The Claimant also argues that the ALJ and Appeals Council erred by failing to contact Claimant‟s treating rheumatologist, Dr. Sacher, regarding Claimant‟s fibromyalgia or, in the alternative, to order a consultative examination regarding the same. Doc. No. 21 at 22-24. In the alternative to reversing for an award of benefits, Claimant requests reversal and remand for further proceedings. Doc. No. 21 at 24. For the reasons set forth below, the final decision of the Commissioner is REVERSED and REMANDED for further proceedings because the ALJ erred by failing to state with particularity the weight given, and the reasons therefor, to the opinions of Drs. Seifer and Vara.


Claimant was born on December 13, 1962. R. 151. On March 19, 2007, Claimant filed an application for benefits alleging an onset of disability as of July 2, 2005, due to back problems, arthritis, thyroid problems, fibromyalgia, and depression. R. 79-81, 85. Claimant‟s application was denied initially and upon reconsideration. R. 79-81.

The record contains treatment records from Claimant‟s treating physician, Dr. Frederick Petersen, which show that Claimant has been diagnosed by him with chronic depression and/or a mood disorder since, January 11, 2005. R. 232, 235-36. Dr. Petersen strongly recommended counseling, but there is no indication Claimant received treatment for her mental impairments.

R. 241. In an effort to obtain information regarding impact and severity of Claimant‟s mental impairments on her ability to work, on August 7, 2007, Claimant presented to Dr. Ronald L. Seifer, a licensed psychologist, for a consultative mental status examination. R. 243-44.

On or about August 7, 2007, Dr. Seifer reviewed Dr. Petersen‟s treatment notes and diagnoses. R. 243. Claimant reported that she is in constant pain and has fibromyalgia and arthritis. R. 243. Claimant described herself as "ugly, fat, and old." R. 243. Claimant denied any mental health treatment, drug or alcohol abuse, or any prior arrests. R. 243. Dr. Seifer‟s August 7, 2007, mental status examination provides:

[A]n obese, 44-year-old, . . . who relates she is 5‟5 and initially tells me she weighs 160 lbs., and corrects this to 260. She laughs at this. She has graying, short hair and wears a plaid shirt and jeans. Her attitude appeared to be cooperative, albeit somewhat naive. Her motor activity is calm. She has some mild anxiety with nervous laughter in this situation. She also yawns as she relates she might be depressed. She goes on to describe her affect, however, as "being okay," with self-conscious laughter. She relates sleep problems, being awakened by her mother. She reports pain in her legs, hands, and hands that go numb. She says she is taking Effexor for a "few years" for "fibromyalgia and pain." Her speech is understandable. Her thought processes appear to be logical and sequential. She denies hallucinations and delusions. She is orientated x3. She recalls 3/3 items after an intervening task and at five minutes. She can spell "world" forward and reverse. She claims she does not know how to calculate the number of nickels in $1.35 with a laugh. She does know there are 20 to a dollar and can solve a quarter, dime, nickel, and penny adding to 41 cents. She is unable to abstract proverbs or similarities [sic] items that are given. She can solve simple common sense problems. Cognitively, I would estimate her to probably be functioning within low average limits overall. Her judgment and insight into the nature of her problems appear to be partial. She appears to have mixed characterological features by her self-description, and presentation, of passivity and compliance.

R. 244. Dr. Seifer diagnoses Claimant with Anxiety Disorder and Personality Disorder. R. 244. Dr. Seifer opines that Claimant‟s impairments impose the following functional limitations: moderate restriction of activities of daily living; moderate difficulties in maintaining social functioning; and moderate difficulties in maintaining concentration, persistence, or pace. R. 244.

On July 31, 2007, due to Claimant‟s allegations of physical/exertional impairments, Claimant presented to Dr. Krishna Vara for a consultative physical examination. R. 246-48.

Based upon his examination, Dr. Vara diagnosed Claimant with: chronic low back pain; fibromyalgia by history; hypertension; hypothyroidism by history; obesity; and chronic depression. R. 248. Dr. Vara offered the following opinion: "It is examiner‟s opinion that this [C]laimant may function at jobs that required [sic] no lifting more than 20 pounds, no prolonged standing, walking for more than 3 hours [sic] an 8 hour workday. This examiner further recommends a psychiatric evaluation for this [C]laimant." R. 248 (emphasis added). Thus, Dr. Vara opines that Claimant can perform a reduced range of light work with no prolong standing or walking more than 3 hours in an eight hour workday. R. 248.*fn1

On July 16, 2009, a hearing was held before the ALJ. R. 26-60. Claimant was the only person to testify at the hearing. R. 26-60. Claimant testified that she is currently working part-time, between three and twelve hours a week, as a cashier or bagger at Publix Supermarket. R. 30. Claimant testified that she cannot work more than that because she cannot stand on her feet or walk for more than three hours. R. 31. Claimant also testified that Publix will not allow her to sit during her job. R. 31. Claimant also testified that she had been diagnosed with chronic depression. R. 48.

On August 18, 2009, the ALJ issued a decision finding Claimant not disabled. R. 16-25. At step-two, the ALJ found that Claimant has the following severe impairments: mild degenerative disc disease of the lumbar spine; back pain; left foot pain; hypothyroidism; and obesity. R. 18. The ALJ noted that treatment records from Dr. Peterson indicate that Claimant has been diagnosed with depression and that Dr. Seifer diagnosed Claimant with anxiety disorder and personality disorder. R. 19. The ALJ found that Claimant‟s depression is not a severe impairment, stating:

The [C]laimant‟s medically determinable mental impairment of depression does not cause more than minimal limitation in the [C]laimant‟s ability to perform basic mental work activities and is therefore, nonsevere.

I making this finding, the undersigned has considered the four broad functional areas set out in the disability regulations for evaluating mental disorders and in sections ...

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