Donato v. Berryhill

Filing 22

REPORT AND RECOMMENDATIONS re 14 MOTION for Summary Judgment filed by Margarita O. Donato, GRANTED In Part and DENIED In Part. 18 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill DENIED In Part and GRANTED In Part. Please not e that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 8/5/2019. Signed by Judge Mary Pat Thynge on 7/22/19. (kjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MARGARITA 0. DONATO,
Plaintiff,
V.

NANCY A. BERRYHILL,
SOCIAL SECURITY DEPUTY
COMMISSIONER FOR OPERATIONS,
Defendant.

)
)
)

)
)
)
)
)
)
)
)
)

C.A. No. 18-476-CFC-MPT

REPORT AND RECOMMENDATION

I.

INTRODUCTION

FILED

JUL 2 2 2019
U.S. DISTRICT COURT DISTRIC'll'OF DELAWARE
~: : .
,;·

'

This action arises from the denial of Plaintiff's claim for Social Security benefits.
On April 15, 2014, Plaintiff filed an application for Social Security Disability Insurance
Benefits under Title II of the Social Security Act. 1 In her initial application and disability
report, Plaintiff alleged she became disabled on October 11, 2011 due to conditions
including: major depression, hypertension, diabetes, anxiety, mood disorder, and
asthma. 2 Her claim was denied initially on August 7, 2014, and denied again upon
reconsideration on December 8, 2014. 3 On February 3, 2015, Plaintiff filed a written
request for a hearing, and a video hearing was held by the administrative law judge
("ALJ") on April 18, 2017. 4 At the hearing, testimony was provided by Plaintiff, who was

1

0.1. 8-3 at 77.
Id. at 46-47.
3
Id. at 77.
4
Id. ("The (Plaintiff] appeared in New Castle, Delaware, and the [ALJ] presided
over the hearing from St. Louis, Missouri").
2

represented by counsel, and a vocational expert ("VE"), Teresa Wolford. 5 The ALJ
found Plaintiff did not qualify as "disabled" under sections 216(i) and 223(d) of the
Social Security Act and denied her request for benefits in a decision dated June 17,
2017. 6 Following the ALJ's unfavorable decision, Plaintiff filed a request for review,
which the Appeals Council subsequently denied on January 23, 2018. 7 Plaintiff brought
a civil action in this court challenging the ALJ's decision on March 28, 2018, and
presently before the court are the parties' cross motions for summary judgment. 8 For
the following reasons, it is recommended that Defendant's motion be denied, Plaintiff's
motion be granted, and the case remanded to the ALJ to address the following
limitations. in the hypothetical question posed to the VE.

II.

BACKGROUND
Plaintiff was born on September 25, 1963. 9 She has a high school education, a

two-year Associate's Degree in information processing, and past work as a receptionist,
medical secretary, copy editor, and customer service representative. 10 She was 48
years old at the onset of her alleged disability, which dates from October 1, 2006. 11
Plaintiff alleges several physical and mental impairments limiting her ability to maintain
employment and contributing to "her inability to perform and sustain work." 12 Although
s Id.
6

7

D.I. 8-3 at 86.
D.I. 8-2 at 1 (finding no reason to review ALJ decision and denying request for

review).
8

D.I. 1 (Pl. Campi.); D.I. 14 (plaintiff's motion for summary judgment); D.I. 18
(defendant's motion for summary judgment).
9
Id. at 19; D.I. 8-3 at 46.
10
D.I. 8-3 at 85.
11
Id. at 46.
12
D.I. 15 at 3; see D.I. 8-3 at 83.

2

she worked after her alleged onset date, the ALJ found this work activity "did not rise to
the level of substantial gainful activity as defined by 20 C.F.R. 404.1571 until 2016." 13
Plaintiff alleges disability due to asthma, left knee pain, depressed mood, and social
anxiety. 14 Plaintiff argues the ALJ provided inadequate weight to her treating medical
providers' opinions. 15 Further, Plaintiff argues the ALJ erred in determining her mental
impairments were not severe and contends the ALJ posed a defective hypothetical
question to the VE by failing to include the ALJ's finding of her mild limitation adapting
and managing herself. 16 To be eligible for disability benefits, Plaintiff must demonstrate
she is disabled within the Acts, which have the same standard, as discussed below.

A.

Evidence Presented

Plaintiff allegedly suffers from a myriad of physical and mental ailments, but, as
noted above, the issues presented to the court are limited to alleged errors by the ALJ
when assessing her mental ailments. 17 Plaintiff provided records of extensive notes
from her treating medical providers, including treatment records from Focus Behavioral
Health and relevant disability questionnaires. 18 Throughout her treatment, Plaintiff's
mental conditions showed fluctuating improvements, where her treating doctor found
either improvements or generally normal findings over time, and Plaintiff denied
psychiatric problems on multiple occasions. 19 Plaintiff alleges the ALJ failed to consider
13

D.I. 8-3 at 79; see D.I. 8-5 at 156, 159-60, 162-63.
D.I. 8-3 at 83; see D.I. 8-6 at 178, 212, 223, 226.
15
D.I. 15 at 17-19; see D.I. 8-3 at 84.
16
D.I. 15 at 11-17; see D.I. 8-2 at 32; see 20 C.F.R. Pt. 404, Subpt. P, App. 1.
17
/d. at 2, 11-17.
18
See D.I. 8-3 at 80, 84 (discussing evidence in the record pertaining to
Plaintiff's alleged mental impairments).
19
D.I. 8-1 Oat 502-03, 508, 515; D.I. 8-14 at 785, 791.
14

3

a number of office visits that reported symptoms of depressed mood, low energy, crying
spells, poor concentration, the inability to get out of bed, and neuro vegetative
symptoms. 20 However, upon examination at these visits, Plaintiff was consistently
found "to have no apparent serious mental status abnormalities."21 Accordingly, as
noted by the ALJ, the record lacks objective medical findings to support her assertions
regarding the severity of her mental ailments. 22

1.

Physical lmpairments 23

Plaintiff has a history of left knee pain and shortness of breath since the alleged
onset date. 24 The record contains objective medical evidence establishing the medical
existence of degenerative joint disease in her left knee, asthma, and obesity. 25
However, no evidence of an active disease was found by diagnostic imaging of
Plaintiff's chest in April 2014, and Plaintiff was never hospitalized overnight due to
asthma related complications during the alleged period of disability. 26
Diagnostic imaging of Plaintiff's left knee demonstrated mild/moderate
degenerative changes in January 2015. 27 Additionally, treatment records document
normal muscle strength and full range of motion in her left knee as well as normal gait

20

D.I. 15 at 13.
D.I. 8-10 at 505-06; see id. at 502-03, 508, 515 (discussing mental status at
office visits); see also id. at 473 ("Anxiety overall stable.").
22
D.I. 8-3 at 80-81.
23
Plaintiff does not raise issue with the ALJ's findings in regard to her physical
symptoms. See D. I. 15. Therefore, the ALJ findings of the record are recited below.
24
D.I. 8-3 at 83.
2s Id.
26
D. I. 8-12 at 642; see id. at 631; see D. I. 8-6 at 183, 188, 215-16; see D. I. 8-3
at 83.
27
D.I. 8-14 at 733-34; see D.I. 8-3 at 83.
21

4

in April 2015 and November 2015. 28 No significant lung or left knee abnormalities were
found during physical examinations conducted in March, July, September, and
November of 2016. 29 Treatment reports further noted Plaintiff was observed in no acute
distress and walking with a normal gait in February 2017 and March 2017. 30 Plaintiff
presented evidence of impairments including: hypertension, hypercholesterolemia, and
diabetes mellitus. 31 The ALJ found these conditions medically determinable but nonsevere, and Plaintiff does not dispute this finding. 32
Plaintiff further alleged back pain, and the ALJ reasonably found this condition.
non-medically determinable because the objective medical evidence in the record failed
to establish the medical existence of this condition. 33 Additionally, Plaintiff has a history
of diabetes and obesity and was admitted to Christiana Care for treatment of elevated
glucose and high blood sugar in May 2011. 34
State Disability Determination Services ("DDS") medical consultants Carl
Bancoff, M.D. and Michael H. Borek, D.O. opined, with specific references to evidence
within the record, that Plaintiff is capable of performing light work with additional
environmental limitations. 35 Dr. Stephen Kushner, M.D., Plaintiff's treating physician,
also indicated Plaintiff is capable of sitting and standing or walking for at least six hours

28

D.I. 8-15 at 847-48, 863; see D.I. 8-3 at 83.
D.I. 8-13 at 655,667,688; D.I. 8-15 at 834; see D.I. 8-3 at 83.
30
D.I. 8-15 at 826; D.I. 8-16 at 910; see D.I. 8-3 at 83.
31
D.I. 8-9 at 432; D.I. 8-10 at 473; D.I. 8-11 at 547, 558, 564, 578; D.I. 8-13 at
668, 689, 693; D.I. 8-15 at 828-29, 835, 843, 864; see D.I. 8-3 at 79.
32
D. I. 8-3 at 81-82; see D. I. 15.
33
D.I. 8-9 at 430, 436-37, 450, 458; D.I. 8-11 at 554; D.I. 8:-12 at 609; D.I. 8-13 at
688; D.I. 8-15 at 826, 833, 847, 856, 863, 871; see D.I. 8-3 at 80.
34
D.I. 8-7 at 256-64.
35
D.I. 8-3 at 51-55, 63-66; see id. at 83-84.
29

5

'

in an eight-hour workday, as shown in Plaintiffs disability questionnaire. 36 The
questionnaire further indicates Plaintiff is not limited in her ability to lift and carry or
perform postural activities, as supported by Dr. Kushner's treatment records and the
results of Plaintiffs left knee MRI in January 2015. 37 The ALJ determined the evidence
in the record supports light work restrictions, and he noted Plaintiffs residual functional
capacity was reduced to accommodate such limitations.

2.

Mental Impairments

Plaintiff has been treated for symptoms of bipolar disorder and anxiety for over
ten years. 38 She received treatment for her mental impairments from two psychiatrists
and a mental health therapist. 39 Dr. Ranga Ram, Plaintiffs most recent psychiatrist,
provided a complete psychiatric evaluation on November 7, 2012. 40 Plaintiffs cognitive
functioning was normal and intact, but she was depressed and anxious. 41 Dr. Ram
diagnosed Plaintiff with "major depressive disorder, recurrent, severe" and prescribed
medication. 42
Subsequently, Plaintiff improved through April 2013 when Dr. Ram recorded
Plaintiff had "no apparent serious mental status abnormalities."43 By July 2013, Plaintiff
self-reported lack of stability and decreased ability to function at home due to her mood,

36

D.I. 8-16 at 930; see D.I. 8-3 at 84.
D.I. 8-10 at 464-97; D.I. 8-11 at 540-89; D.I. 8-13 at 645-732; D.I. 8-14 at 75556; D.I. 8-16 at 931; see D.I. 8-3 at 84.
38
D.I. 15 at 3; D.I. 21 at 3.
39
D.I. 15 at 3.
40
D.I. 8-10 at499-50.
41
Id. at 500.
42 Id.
43
Id. at 502-03, 505.
37

6

along with complaints of neuro vegetative state, early morning fatigue, lack of energy,
and poor motivation. 44 Upon examination, Dr. Ram prescribed Ambien for sleep after
finding Plaintiff appeared downcast, minimally communicative, anxious, and exhibited
poor insight. 45 By October 2013, she reported slight improvement. 46 In March 2014,
she reported further symptoms of depression and anxiety, and Dr. Ram prescribed
additional medications. 47 Plaintiff continued showing signs of depression until reporting
improvements in September 2014. 48 Signs of anxiety remained, but Plaintiff's thinking,
cognitive functioning, and memory were normal. 49
On July 23, 2014, a state agency physician, Dr. Christopher King, Psy.D.,
conducted a psychiatric review of Plaintiff and found she did not have any restrictions in
activities of daily living, and maintaining social functioning, concentration, persistence,
or pace. 50 Dr. King found Plaintiff's mental health condition non-severe. 51 On
November 28, 2014, a second state agency physician, Dr. Carlene Tucker-Okine,
Ph.D., affirmed this finding and noted ·Plaintiff's mood showed no signs of depression or
elevation. 52
In June 2015, Plaintiff experienced further improvement and returned to work,
but Dr. Ram noted she still showed symptoms of depressed mood, neuro vegetative

44
4s

46
47
48
49
50
51
52

Id. at 506.
Id.
D.I. 8-1 Oat 510.
Id. at 511 .
Id. at 513, 538.
0.1. 8-10 at 538.
0.1. 8-3 at 51-52.
Id. at 52.
Id. at 65.

7

symptoms, pessimistic thoughts, and low self-esteem. 53 Plaintiff continued to complain
of anxiety and nervousness in August 2016, and she voluntarily admitted herself to the
Rockford Center after experiencing symptoms of depression and feelings of suicide in
September 2016. 54 She was diagnosed with bipolar disorder and generalized anxiety
disorder. 55 Plaintiff was also admitted to Christiana Hospital, Meadowwood Hospital,
and Rockford Center "for deteriorating, mental health on multiple occasions from 2011
to 2016." 56

B.

Hearing Testimony
1.

Plaintiff's Testimony

At the administrative hearing on April 18, 2017, Plaintiff testified to her
background, work history, education, and alleged disability. 57 As noted previously,
Plaintiff has an Associate's Degree in information processing. 58 She testified that
concentration problems prevented her from maintaining employment. 59 Plaintiff
discussed her work as a full-time cafeteria worker for Red Clay Consolidated School
District beginning in February 2015 and the events surrounding her termination for poor
work performance in October 2015. 60 Additionally, Plaintiff testified about her
employment as a social worker for PATHS, LLC and her termination after approximately

53
54
55
56

D.
D.
D.
D.

57

D.

58

D.

59

D.

60

Id.

8-14 at 811 .
8-11 at 597; D.I. 8-14 at 785, 789-95.
8-11 at 599.
15 at 6; see D.I. 8-7 at 287-305; see D.I. 8-11 at 597-607.
8-2 at 17-30.
8-3 at 83; see D.I. 8-2 at 19.
8-2 at 20-23.
at 20.
8

ten months "as a result of worsening psychiatric symptoms." 61
She testified about her competitive employment with a media company, where
she trained and edited commercials. 62 She claimed she was terminated because she
could not keep up with the pace and task

of editing commercials.

63

Plaintiff further

discussed her employment with Nemours Foundation, where she was employed as a
receptionist. 64 She claimed she was terminated because she "could not keep up" with
scheduling tasks. 65 She discussed two other positions where she worked as a
customer service representative, prior to her alleged onset date, and she reported no
issues in these positions. 66
Plaintiff claimed she felt depressed on the day of the hearing and complained of
difficulty with concentration. 67 Plaintiff explained she experiences mood swings and
deep depression "every other couple months."68 She further testified that she is
married, lives with her spouse and two adult children, and is able to drive an automobile
twice per week. 69 Plaintiff also reads, attends church, and volunteers to clean the
church once per week. 70

61
62
63

64
65
66
67
68
69

70

ld.at19.
Id. at 21-22.
Id. at 22.
Id.
D.I. 8-2 at 22.
Id. at 23.
Id. at 24.
Id. at 25.
Id. at 18.
Id. at 28.
9

2.

Vocational Expert Testimony

Testimony was provided at the hearing by VE, Teresa Wolford. 71 Ms. Wolford
characterized Plaintiff's past work at the sedentary exertional level, with specific
vocational preparation levels of four (4) and six (6). 72 She addressed hypothetical
questions from the ALJ.
The ALJ asked whether an individual of the same age, education, and
background could perform work at a light exertional level if "limited to only occasional
crawling or climbing ladders, ropes, or scaffolds, and this individual could not tolerate
concentrated exposure to temperature extremes, humidity, strong odors, fumes, dust,
chemicals, or other respiratory irritants."73 Ms. Wolford testified,that an individual with
these limitations could perform all of Plaintiff's past relevant work. 74
The ALJ added to the hypothetical the limitations of only simple, routine, and
repetitive tasks, with only brief and superficial interaction with the public or co-workers. 75
Ms. Wolford testified this individual would not be capable of performing Plaintiff's past
work. 76 However, Ms. Wolford identified several jobs in the national economy that an
individual having the limitations of this hypothetical could perform. 77

C.

The ALJ's Finding of Facts and Conclusions of Law

1.

Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2017.

71
72
73
74

?s
76
77

D.I. 8-2 at 30.
Id. at 31.
Id. at 32.
Id.
Id.
Id.
Id. at 32-33.
10

2.

Plaintiff did not engage in substantial gainful activity after October 11,
2011, the alleged onset date until 2016 (20 C.F.R. 404.1571 et seq.).

3.

Plaintiff has the following severe impairments: asthma, obesity, and
degenerative joint disease in the left knee (20 C.F.R. 404.1520(c)).

4.

Plaintiff does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d),
404.1525 and 404.1526).

5.

Plaintiff has the residual functional capacity to perform light work as
defined in 20 C.F.R. 404.1567(b) except she is limited to no more than
occasionally crawling and climbing ladders, ropes, or scaffolds.
Additionally, Plaintiff is limited to no concentrated exposure to respiratory
irritants.

6.

Plaintiff is capable of performing past relevant work as a receptionist, a
medical secretary, a copy editor, and a customer service representative.
This work does not require the performance of work-related activities
precluded by Plaintiff's residual functional capacity (20 C.F.R. 404.1565).

7.

Plaintiff has not been under a disability, as defined in the Social Security
Act, from October 11, 2011, through the date of this decision (20 C.F.R.
404.1520(f)). 78

Conclusively, "[b]ased on the application for a period of disability and disability
insurance benefits protectively filed on April 15, 2014, [Plaintiff] is not disabled under
sections 216(i) and 223( d) of the Social Security Act. "79

Ill.

STANDARD OF REVIEW

A.

Motion for Summary Judgment

Each party moved for summary judgment. 80 In determining the appropriateness

78

0.1. 8-3 at 79-85.
Id. at 86 (ordering dismissal and denying request for a hearing).
80
0.1. 14 (Plaintiff's motion for summary judgment); 0.1. 18 (Defendant's motion
for summary judgment).
79

11

of summary judgment, the court must "review the record as a whole, 'draw[ing] all
reasonable inferences in favor of the nonmoving party[,]' but [refraining from] weighing
the evidence or making credibility determinations."81 If there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law, summary
judgment is appropriate. 82
This standard does not change merely because there are cross-motions for
summary judgment. 83 Cross-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist. 84
"The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party."85

8.

Court's Review of the ALJ's Findings

Section 405(g) sets forth the standard of review of the ALJ's decision by the
district court. The court may reverse the Commissioner's final determination only if the
ALJ did not apply the proper legal standards, or the record did not include substantial
evidence to support the ALJ's decision. The Commissioner's factual decisions are
upheld if supported by substantial evidence. 86 Substantial evidence means less than a
81

Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
Hi/Iv. City of Scranton, 411 F.3d 118,125 (3d Cir. 2005) (quoting FED. R. CIv.
P. 56(c)).
83
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
84
Rains v. Cascade Indus., Inc., 402 F.2d 241,245 (3d Cir. 1968).
85
Krupa v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
86
42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Med. Ctr. v.
Heckle, 806 F.2d 1185, 1190 (3d Cir. 1986).
82

12

preponderance of the evidence, but more than a mere scintilla of evidence, 87 As the
United States Supreme Court has found, substantial evidence "does not mean a large
or significant amount of evidence, but rather such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." 88
In determining whether substantial evidence supports the Commissioner's
findings, the court may not undertake a de nova review of the Commissioner's decision
and may not re-weigh the evidence of record. 89 The court's review is limited to the
evidence that was actually presented to the ALJ. 90 The Third Circuit has explained that

a:
single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by countervailing
. evidence. Nor is evidence substantial if it is overwhelmed by other evidence,
particularly certain types of evidence (e.g., evidence offered by treating
physicians) or if it really constitutes not evidence but mere conclusion. 91
Thus, the inquiry is not whether the court would have made the same
determination, but rather, whether the Commissioner's conclusion was reasonable. 92
Even if the court would have decided the case differently, it must defer to the ALJ and
affirm the Commissioner's decision so long as that decision is supported by substantial
evidence. 93
Where "review of an administrative determination is sought, the agency's

87
88
89
90

91
92
93

Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Monsour, 806 F.2d at 1190.
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001).
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
Monsour, 806 F.2d at 1190-91.
13

decision cannot be affirmed on a ground other than that actually relied upon by the
agency in making its decision." 94 In Securities & Exchange Commission v. Chenery
Corp., the Supreme Court found that a "reviewing court, in dealing with a determination
or judgment which an administrative agency alone is authorized to make, must judge
the propriety o~ such action solely by the grounds invoked by the agency. If those
grounds are inadequate or improper, the court is powerless to affirm the administrative
action by substituting what it considers to be a more adequate or proper basis." 95 The
Third Circuit has recognized the applicability of this finding in the Social Security
disability context. 96 Thus, this court's review is limited to the four corners of the ALJ's
decision. 97

C.

ALJ's Disability Determination Standard

The Supplemental Social Security Income (SSI) program was enacted in 1972 to
assist "individuals who have attained the age of 65 or are blind or disabled" by setting a
minimum income level for qualified individuals. 98 A claimant- in order to establish SSI
eligibility- bears the burden of proving that 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 or not less than twelve months." 99 Moreover, "the physical or

94
95

96

97
98

Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947).
Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001).
Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa. 2005).
Sullivan v. Zebley, 493 U.S. 521, 524 (1990) (citing 42 U.S.C. § 1381 (1982

ed.)).
99

42 U.S.C. § 423(d)(1)(A).
14

mental impairment or impairments must be of such severity that the claimant is not only
unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in

°

significant numbers in the national economy." 10 Furthermore, a "physical or mental
impairment" is an impairment that results from anatomical, physiological, or
psychological abnormalities which are evidenced by medically acceptable clinical and
laboratory diagnostic techniques. 101

1.

Five-Step Test.

The Social Security Administration uses a five-step sequential claim evaluation
process to determine whether an individual is disabled. 102
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful activity. If a claimant
is found to be engaged in substantial activity, the disability claim will be
denied.
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. If the claimant fails to
show that her impairments are "severe", she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the
claimant's impairment to a list of impairments presumed severe enough to
preclude any gainful work. If a claimant does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps four and five.
Step four requires the ALJ to consider whether the claimant retains the
residual functional capacity to perform her past relevant work. The
claimant bears the burden of demonstrating an inability to return to her
past relevant work. If the claimant is unable to resume her former
occupation, the evaluation moves to the final step.
At this stage, the burden of production shifts to the Commissioner,
who must demonstrate the claimant is capable of performing other

100

42 U.S.C. § 423(d)(2)(A).
42 U.S.C. § 423(d)(3).
102
20 C.F.R. § 416.920(a); see also Plummerv. Apfel, 186 F.3d 422 (3d Cir.
101

1999).

15

available work in order to deny a claim of disability. The ALJ must show
there are other jobs existing in significant numbers in the national
economy which the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and residual
functional capacity. The ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether she is capable of
performing work and is not disabled. The ALJ will often seek the
assistance of a vocational expert at this fifth step. 103
If the ALJ determines that a claimant is disabled at any step in the sequence, the
analysis ends. 104

2.

Weight Afforded Treating Physicians

"A cardinal principle guiding disability eligibility determinations is that the ALJ
accord treating physicians' reports great weight." 105 Moreover, such reports will be
given controlling weight where a treating source's opinion on the nature and severity of
a claimant's impairment is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence on record. 106
The ALJ must consider medical findings supporting the treating physician's
opinion that the claimant is disabled. 107 If the ALJ rejects the treating physician's
assessment, he may not make "speculative inferences from medical reports" and may
reject "a treating physician's opinion outright only on the basis of contradictory medical

103

Plummer, 186 F.3d at 427-28.
20 C.F.R. § 404.1520(a).
105
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
106
Fargnoli, 247 F.3d at 43.
107
Morales, 225 F.3d at 317 (citing Plummer, 186 F.3d at 429).
104

16

evidence." 108 If an opinion is rejected, then the ALJ must provide an explanation for the
rejection. However, the explanation need not be exhaustive, but rather "in most cases,
a sentence or short paragraph would probably suffice." 109
However, a statement by a treating source that a claimant is "disabled" is not a
medical opinion; rather, it is an opinion on an issue reserved to the ALJ because it is a
finding that is dispositive of the case. 110 Therefore, only the ALJ can make a disability
determination.

3.

Factors in Evaluating Credibility111

A claimant's statements and reports from medical sources and other persons
with regard to the seven factors, noted above, along with any other relevant information
in the record, provide the ALJ with an overview of the subjective complaints, and are
elements to the determination of credibility.
Consistency with the record, particularly medical findings, supports a claimant's
credibility. Since the effects of symptoms can often be clinically observed, when
present, they tend to lend credibility to a claimant's allegations. Therefore, the
adjudicator should review and consider any available objective medical evidence in
evaluating the claimant's statements. An applicant's claims, however, may be less
credible if the level or frequency of treatment is inconsistent with the level of complaints,
or if the medical reports or records show noncompliance with prescribed treatment.

108
109
110
111

Plummer, 186 F.3d at 429.
Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981 ).
See 20 C.F.R. § 416.927 (e)(1).
SSR 16-3p.
17

Findings of fact by state agency medical and psychological consultants and other
physicians and psychologists regarding the existence and severity of impairments and
symptoms, and opinions of non-examining physicians and psychologist are also part of
the analysis. Such opinions are not given controlling weight. However, the ALJ,
although not bound by such findings, may not ignore them and must explain the weight
afforded those opinions in his decision.
Credibility is one element in determining disability. The ALJ must apply his
finding on credibility in step two of the five-step disability determination process, and
may use it at each subsequent step.
The decision must clearly explain - provide sufficiently specific reasons based
on the record - to the claimant and any subsequent reviewers, the weight afforded to
the claimant's statements and the reasons therefore.
The law recognizes that the claimant's work history should be considered when
evaluating the credibility of her testimony or statements. 112 A claimant's testimony is
accorded substantial credibility when she has a long work history, which demonstrates it
is unlikely that, absent pain, she would have ended employment. 113

5.

Medical Expert Testimony

The onset date of disability is determined from the medical records and reports

112

20 C.F.R. § 404.1529(a)(3).
Podedwomy v. Harris, 745 F.2d 210, 217 (3d Cir. 1984) (citing Taybron v.
Harris, 667 F.2d 412,415 n.6 (3d Cir. 1981)). In Podedwomy, the claimant worked for
thirty-two years as a crane operator for one company. He had a ninth grade education
and left his employment after the company physicians determined that his symptoms of
dizziness and blurred vision prevented him from safely performing his job.
113

18

and other similar evidence, which requires the ALJ to apply informed judgment. 114 "At
the hearing, the [ALJ] should call on the services of a medical advisor when onset must
be inferred." 115

IV.

DISCUSSION
A.

Parties' Contentions

In her appeal, Plaintiff argues the ALJ failed to properly weigh the medical
opinion evidence provided by treating physicians, Ors. Kushner and Ram. 116 She
contends the ALJ's findings disregarded records documenting the severity of Plaintiff's
bipolar disorder and anxiety. 117 Furthermore, Plaintiff claims the hypothetical question
posed to the VE failed to describe all of her credibly established impairments;
specifically, the mild limitation of adapting and managing herself. 118
Alternatively, Defendant contends the ALJ reasonably concluded Plaintiff was
not disabled under the stringent requirements of the Act and Regulations. Defendant
argues the ALJ appropriately applied the sequential evaluation process in his
determination that Plaintiff's bipolar and anxiety disorder were not severe impairments,
the ALJ properly considered the opinions of Ors. Kushner and Ram, and the ALJ's
hypothetical question to the VE was not required to include the mild limitation of
adapting and managing oneself. 119 The overarching issue is whether the ALJ's

114
11s
116
117
118
119

SSR 83-20.
Id.
D.I. 15 at 11-15.
Id.
Id. at 15-20.
D.I. 19 at 8-14.
19

determination that Plaintiff is not disabled is supported by substantial evidence.

B.

Disability Analysis

Title II of the Social Security Act, 42 U.S.C. § 423(a)(l)(D), "provides for the
payment of insurance benefits" to those who contributed to the program and suffer from
a physical or mental disability. 120 In order to qualify for disability insurance benefits, a
claimant must establish she was disabled prior to the date she was last insured. 121 A
"disability" is defined as the inability to do any substantial gainful activity because of any
medically determinable physical or mental impairment, which either could result in
death or has lasted or can be expected to last for a continuous period of at least 12
months. 122 To be disabled, the severity of the impairment must prevent return to
previous work, and considering age, education, and work experience, restrict "any other
kind of substantial gainful work which exists in the national economy." 123
In determining whether a person is disabled, as discussed previously, the
Commissioner is required to perform a five-step sequential analysis. 124 If a finding of
disability or non-disability can be made at any point in the sequential process, the
Commissioner does not review the claim further. 125 If in the five-step sequential
analysis the claimant's impairments are found to be severe, the Commissioner, at the
third step, compares the claimant's impairments to a list of impairments (the "listings")

120
121

Bowen, 482 U.S. at 140.

20
122
42
123
42
124
20
Cir. 1999).
125
20

C.F.R.
U.S.C.
U.S.C.
C.F.R.

§ 404.131.
§§ 423(d)(l)(A), 1382(c)(a)(3).
§ 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
§ 404.1520; see also Plummerv. Apfel, 186 F.3d 422,427-28 (3d

C.F.R. § 404.1520(a)(4).
20

that are presumed severe enough to preclude any gainful work. 126 If a claimant's
impairments, either singularly or in combination, fail to meet or medically equal any
impairments within the listing, the analysis continues to step four and five. 127 At step
four, the Commissioner determines whether the claimant retains the RFC to perform
her past relevant work. 128 A claimant's RFC is "that which an individual is still able to do
despite the limitations caused by [her] impairment(s)." 129 "The claimant bears the
burden of demonstrating an inability to return to [her] past relevant work." 130
If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude adjusting to
any other available work. 131 At this final step, the burden is on the Commissioner to
show the claimant is capable of performing other available work existing in significant
national numbers and consistent with the claimant's medical impairments, age,
education, past work experience, and RFC before denying disability benefits. 132 In
making this determination, the ALJ must analyze the cumulative effect of all the
claimant's impairments and often seeks the assistance of a vocational expert. 133

1.

Weight Accorded to Medical Opinion Evidence

It is the exclusive responsibility of the ALJ to weigh the evidence in the record as
126

20 C.F.R. § 404.1520(a)(4)(iii); see also Plummer, 186 F.3d at 428.
20 C.F.R. § 404.1520(e).
128
20 C.F.R. § 404.1520(a)(4)(iv); see also Plummer, 186 F.3d at 428.
129
Fargnoli, 247 F.3d at 40.
130
Plummer, 186 F.3d at 428.
131
20 C.F.R. § 404.1520(9) (mandating finding of non-disability when claimant
can adjust to other work); see also Plummer, 186 F.3d at 428.
132
Plummer, 186 F.3d at 428.
133
Id.; see Podedworny, 745 F.2d at 218; see 20 C.F.R. § 404.1523.
127

21

a whole in making a disability decision. 134 The evidence presented to the ALJ may
contain differing medical opinions from both treating and non-treating physicians, as
well as other testimony. 135 Normally, the evidence presented by the treating physician
is given controlling weight, as that individual may be most acquainted with the medical
history of the claimant. However, in circumstances where the treating physician's
opinion is not consistent with the record as a whole or is not well supported by
"medically acceptable clinical and laboratory diagnostic techniques," an ALJ may
reasonably accord little weight to the treating physician's opinion. 136 Plaintiff argues the
ALJ failed to properly weigh the medical opinion from treating physician Dr. Kushner
and psychiatrist Dr. Ram. 137 The court finds proper weight was given to both medical
opinions, and the evidence supports this decision.

a.

Dr. Ram

The ALJ assigned little weight to the opinion of treating psychiatrist Dr. Ram. 138
Dr. Ram's questionnaire determined Plaintiff is not capable of performing skilled, semiskilled, or unskilled work, and her mental impairments result in extreme limitations in the
ability to engage in daily activities, interact socially, and maintain concentration,
persistence, or pace. 139 Additionally, Plaintiff will be absent from work more than four
days per month due to her mental impairments. 140 The ALJ properly considered this

134
135
136
137
138
139
140

See 20 C.F.R. 404.1527(e)(2).
See20 C.F.R. 404.1512.
See 20 C.F.R. 404.1527(c).
D.I. 15 at 17-20.
,
D.I. 8-3 at 84.
D.I. 8-16 at 918-20, 923.
Id. at 921.
22

opinion in light of the entire record, including treatment records from Dr. Ram's own
health clinic, Focus Behavioral Health, which consistently recorded Plaintiff's normal
speech, intact language skills, normal attention span, intact insight and judgment, and
logical and appropriate thought content without evidence of hallucinations or
delusions. 141
Accordingly, the ALJ reasonably found Dr. Ram's disability questionnaire and
medical opinion inconsistent with the objective medical evidence in the record as a
whole when affording the opinion little weight. 142 The ALJ properly explained Dr. Ram's
opinion lacked support within his own record, and he provided contradicting opinions
throughout his reports. 143 Therefore, the court finds the ALJ afforded appropriate
weight to Dr. Ram's findings.

b.

Dr. Kushner

The ALJ assigned little weight to treating physician, Dr. Kushner's opinion
concerning Plaintiff's likelihood to be off task for twenty-five percent (25%) or more of a
typical workday due to her mental impairments. 144 As noted by the ALJ, although Dr.
Kushner is Plaintiff's treating physician, portions of his opinion are not consistent with
the record as a whole. 145 The ALJ reasonably afforded little weight to the portion of his
opinion that was based primarily on Plaintiff's self-reported psychiatric complaints,

141

D.I. 8-14 at 780, 785, 791, 800; D.I. 8-16 at 912, 914.
D.I. 8-3 at 84 (explaining inconsistencies in Dr. Ram's questionnaire and
relevant treatment records from Focus Behavioral Health).
143 Id.
144
D.I. 8-3 at 84-85; D.I. 8-16 at 932.
145
Id. at 84; see 20 C.F.R. 404.1527(c).
142

23

rather than his objective medical findings. 146 Although Dr. Kushner is Plaintiff's treating
physician, he does not actively treat her mental impairments, and the ALJ reasonably
found his opinion inconsistent with treatment records from Focus Behavioral Health
documenting Plaintiffs consistent denial of experiencing psychiatric problems or
symptoms at several visits between July 2016 and January 2017. 147 Accordingly, the
ALJ reasonably afforded little weight to Dr. Kushner's opinion concerning Plaintiffs
mental impairments.
Plaintiff also suggests the ALJ rejected the opinion of Dr. Kushner, but Dr.
Kushner's medical opinion was given great weight to the extent it was consistent with
the record as a whole. 148 Specifically, the ALJ provided great weight to Dr. Kushner's
findings that Plaintiff is capable of sitting and standing and/or walking for at least six
hours in an eight hour work day, as supported by his disability questionnaire, his
treatment records, and the results of Plaintiff's MRI in January 2015. 149 Accordingly, the
ALJ fully considered Dr. Kushner's opinion in light of the record as a whole and properly
afforded great weight to the extent it was consistent with the objective medical
evidence. 150 Moreover, the ALJ properly discounted Dr. Kushner's opinion where it
contradicted the objective medical evidence in the record .151 Therefore, the court finds
the ALJ afforded appropriate weight to Dr. Kushner's findings.

146

0.1. 8-3 at 83; see D.I. 8-10 at 464-97; 0.1. 8-11 at 540-89; 0.1. 8-13 at 645-

147
148

0.1. 8-3 at 83-84; 0.1. 8-14 at 780, 785,791; 0.1. 8-16 at 914.
0.1.15 at 18-19; 0.1. 8-3 at 84.
0.1. 8-3 at 84.
0.1. 8-3 at 84-85.
See 20 C.F.R. 404.1527(c).

732.
149
150
151

24

2.

Severity Findings

Plaintiff contends the ALJ erred in finding her symptoms of bipolar disorder and
anxiety non-severe because her symptoms cause more than a minimal effect on her
ability to sustain employment. 152 Plaintiff alleges each employment termination during
the period from her alleged onset date was due to the severity of her depression and
anxiety. 153 Specifically, Plaintiff claims the ALJ mischaracterized Plaintiff's testimony
and discredited the severity of her bipolar disorder and anxiety without a clear and
satisfactory explanation. 154 When finding Plaintiff's mental impairments non-severe, the
ALJ assessed Plaintiff's functional limitations under the four broad functional areas
provided by the disability regulations for evaluating mental disorders. 155
Under the first functional area concerning understanding, remembering, or
applying information, the ALJ found no limitation. 156 Plaintiff's written testimony
reported needs for reminders, difficulty focusing when depressed, and difficulty
following spoken instructions. 157 However, the ALJ based his finding on Plaintiff's ability
to check her blood sugar and blood pressure on a daily basis and her lack of need for
reminders to take care of personal needs and grooming. 158 Furthermore, Plaintiff
testified she is able to prepare her own meals, perform light household cleaning chores,

152

0.1.15 at 11-15.
0.1. 15 at 13-15.
154
0.1.15 at 15 (citing Cotterv. Harris, 642 F.2d 700, 704 (3d Cir. 1981);
Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001)).
155
0.1. 8-3 at 80; see 20 C.F.R. Pt. 404, Subpt. P, Appx. 1, § 12.00(c).
156
0.1. 8-3 at 80.
157
0.1. 8-6 at 202, 206-08; see 0.1. 8-3 at 80 ("[C]laimant reports difficulty
remembering and following directions.").
158
0.1. 8-3 at 80; see 0.1. 8-6 at 202, 204.
153

25

shop in stores, watch television, and read. 159 Additionally, the treatment records from
Focus Behavioral Health noted Plaintiff was observed with intact memory and cognitive
abilities from March 2016 to February 2017. 160 The court finds substantial evidence
supports the ALJ's finding of no limitation understanding, remembering, or applying
information.
Under the next functional area, the ALJ found Plaintiff has no limitation
interacting with others. 161 Although Plaintiff self-reported symptoms of social isolation
and remaining at home due to anxiety and fear, the ALJ pointed to evidence in the
record showing Plaintiff lives with her family, attends church regularly, and does not
have problems getting along with family, friends, neighbors, or others, including
authority figures. 162 Further, treatment records from Focus Behavioral Health reveal
evidence of Plaintiff's cooperative behavior, normal speech, and intact language skills
on a consistent basis from March 2016 to February 2017. 163 Accordingly, the court
finds substantial evidence supports the ALJ's conclusion of no limitation interacting with
others.
Under the third functional area, the ALJ found Plaintiff has no limitation
concentrating, persisting, or maintaining pace. 164 Plaintiff asserted difficulty focusing,
finishing what she starts, and attributed her inability to maintain employment to her

159
160
161
162
163
164

D.I.
D.I.
D.I.
D.I.
D.I.
D.I.

8-3 at 80; see D.I. 8-6 at 202, 204-06.
8-14 at 780, 785, 791, 801; D.I. 8-16 at 912, 914; see D.I. 8-3 at 80.
8-3 at 80.
8-6 at 202-08; D.I. 8-3 at 80.
8-14 at 780,785, 791, 800-01; D.I. 8-16 at 912,914; see D.I. 8-3 at 80.
8-3 at 80.
26

failures to keep up with relevant tasks. 165 However, the ALJ found evidence of Plaintiff's
ability to engage in household cleaning chores, shop in stores, watch TV, and read. 166
Additionally, Plaintiff testified about her ability to drive. 167 The ALJ found this evidence
consistent with treatment records from Focus Behavioral Health documenting Plaintiff's
normal attention span and logical and appropriate thought content without evidence of
hallucinations or delusions from March 2016 to February 2017. 168 Accordingly, the
court finds substantial evidence supports the ALJ's conclusion of no limitation
concentrating, persisting, or maintaining pace.
Under the fourth functional area, the ALJ determined Plaintiff has a mild
limitation adapting and managing herself. 169 Plaintiff reported difficulty handling stress
and changes in routine, but the record demonstrated her ability to perform personal
care activities such as preparing meals, household chores, going outside without
supervision, shopping, attending church regularly, and spending time with others. 170
Plaintiff claims the ALJ erred in his severity finding because Plaintiff had a history of

165

D.I. 8-6 at 205-07; D.I. 8-2 at 21-22; see D.I. 8-3 at 80.
D.I. 8-3 at 80; see D.I. 8-6 at 202-06.
167
D.I. 8-2 at 18; see D.I. 8-3 at 80.
168
D.I. 8-14 at 780, 785, 791, 800-01; D.I. 8-16 at 912, 914; see D.I. 8-3 at 80.
169
D.I. 8-3 at 80-81. Social Security defines "adapt or manage onself' as the
"area of mental function refer[ring] to the abilities to regulate emotions, control behavior,
and maintain well being in a work setting. Examples include: responding to demands;
adapting to changes; managing your psychologically based symptoms; distinguishing
between acceptable and unacceptable work performance; setting realistic goals;
making-plans for yourself independently of others; maintaining personal hygiene and
attire appropriate to a work setting; and being aware of normal hazards and taking
appropriate precautions." 20 C.F.R. Pt. 404, Subpt. P, App. 1.
170
D.I. 8-6 at 202-08; see D.I. 8-3 at 80-81.
166

27

mental health problems that were not considered by the ALJ. 171 Although the ALJ did
not elaborate on Plaintiff's mental health history, the ALJ is not required to discuss
every piece of evidence in his analysis. 172
The ALJ pointed to treatment records from Focus Behavioral Health
documenting Plaintiff's logical thought content, intact associations, and intact insight
and judgment documented from March 2016 to February 2017, and he concluded
Plaintiff experiences a only mild limitation in adapting and managing herself. 173 The
ALJ properly considered the objective medical evidence in the record as a whole and
provided sufficient explanation for his conclusion, as Plaintiff's self-reported symptoms
lacked support from the objective medical evidence. 174 Therefore, the court finds
substantial evidence supports the ALJ's finding that Plaintiff experiences only mild
limitations adapting and managing herself. Since Plaintiff's medically determinable
depression and anxiety caused no limitations in the first three functional areas and only
a "mild" limitation in the fourth area, the ALJ properly found Plaintiff's mental condition
non-severe. 175

171

0.1.15 at 11.
See Hur v. Barnhart, 94 F. App'x 130, 133 (3d Cir. 2004) ("There is no
requirement that the ALJ discuss in its opinion every tidbit of evidence included in the
record.").
173
0.1. 8-3 at 80-81; see 0.1. 8-14 at 780, 785, 791, 800-01; see 0.1. 8-16 at 912,
914.
174
See Hur, 94 F. App'x at 133 (implying that the ALJ may decline to reference
specific evidence he does not find notable based on contradictory evidence in the
record).
175
20 C.F.R. § 404.1520a(d)(1).
172

28

3.

RFC Assessment and Vocational Expert Hypothetical

Plaintiff contends the ALJ failed to properly assess her residual functional
capacity or RFC. An RFC is an individual's ability to perform in a work setting despite
impairments and limitations. 176 In making this finding, the ALJ must consider all of the
claimant's impairments, including those that are non-severe. Although the ALJ may
weigh the credibility of the evidence, he must indicate the evidence which he rejects
and his reason(s) for discounting such evidence. 177
In the current matter, the ALJ found Plaintiff possessed the residual functional
capacity to perform light work with some additional environmental limitations. The Act
defines light work when it:
involves lifting no more than twenty pounds at a time with frequent or
carrying of objects weighing up to ten pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range or light work, you must have the
ability to do substantially all of these activities. 178
The ALJ specifically found Plaintiff could work at a level consistent with the her
past skilled or semi-skilled work. 179 Moreover, he determined her residual functional
capacity as generally consistent with the most recent evaluation by state agency
medical consultants regarding Plaintiff's physical and mental ability. 180

176

20 C.F.R. § 404.1545.
Plummer, 186 F.3d at 429.
178
20 C.F.R. § 404.1567(b).
179
0.1. ·8-3 at 84.
180
Id. at 83-84.

177

29

Plaintiff further argues the ALJ posed a defective hypothetical question to the VE
by failing to include reference to the ALJ's own finding of Plaintiff's mild limitation of
adapting and managing oneself, which precluded the VE's testimony from being
considered substantial evidence. 181 After defining Plaintiff's past relevant work under
DOT codes, the ALJ posed a hypothetical question to the VE stating:
I want you to assume you're dealing with an individual who's the same age as
[Plaintiff]. She's now 53 with the same high school and educational background,
the same past work experience .... [B]egin by assuming that this individual has
the residual functional capacity for light work .... [and is] limited to only
occasional crawling or climbing ladders, ropes or scaffolds, and this individual
could not tolerate concentrated exposure to temperature extremes, humidity,
strong odors, fumes, dust, chemicals or other respiratory irritants. Could this
individual perform any past work? 182
The VE testified "the individual could do all of the past relevant work." 183 The
ALJ then added the limitation of only simple, routine, and repetitive tasks, with only brief
and superficial interaction with the public or coworkers to the hypothetical, and the VE
testified this individual would not be capable of performing past work. 184 However, the
VE identified several other jobs in the national economy. 185
The ALJ relied on the VE's testimony that Plaintiff "would be able to perform past
work of receptionist, medical secretary, copy editor, and customer service
representative as actually and generally performed" skilled and semi-skilled work to find
Plaintiff not disabled within the Acts. 186 When arguing the ALJ posed a defective

181
182
183
184
185
186

D.I.
D.I.
D.I.
D.I.
D.I.
D.I.

15 at 15-17.
8-2 at 32.
8-2 at 31-32.
8-2 at 32.
8-2 at 32-33.
8-3 at 85.

30

hypothetical question to the VE, Plaintiff primarily relies on Moore v. Colvin as
warranting remand. 187
In Moore, the ALJ similarly conducted a functional limitation assessment of the
plaintiff's mental impairment using the four broad functional areas of the disability
regulations for evaluating mental disorders. 188 Although the ALJ found no limitation in
three out of the four functional areas, the plaintiff was found to have a mild limitation in
the third functional area of concentration, persistence, and pace. 189 The court held the
ALJ properly found the plaintiff's depression as non-severe. 190 However, as the ALJ
"found that [the plaintiff's] non-severe depression was medically supported, and having
acknowledged that there were mild limitations associated therewith, the ALJ had a duty
to address those limitations in the RFC assessment and the hypothetical posed to the

VE." 191 The court remanded the case to the Commissioner with instructions to include
the foregone limitations in the hypothetical question posed to the VE and to re-assess
the plaintiff's RFC and ability to return to past relevant work. 192
A hypothetical question posed to a VE "must reflect all of a claimant's

187

Moore v. Colvin, 239 F. Supp. 3d 845 (D. Del. 2017); see D.I. 15 at 17.
Moore, 239 F. Supp. 3d at 856-58.
189
Id. at 857.
190
Id. at 857-58.
191
Id. at 860-61 (citing Harmon v. Astrue, Civ. No. 10-6781, 2012 WL 94617, at
*2 (E.D. Pa. Jan. 11, 2012)) (emphasis added); see Moore, 239 F. Supp 3d at 860
("[T]he ALJ ... acknowledged that Moore suffered from 'medically determinable
affective disorder' which causes 'minimal limitation in [Moore's] ability to perform basic
mental work activities."').
192
Moore, 239 F. Supp. 3d at 861.
188

31

impairments." 193 Providing guidance on this requirement, the Third Circuit Court of
Appeals has stated that an ALJ is not required "to submit to the vocational expert every
impairment alleged by a claimant. ... [But] the hypotheticals posed must 'accurately
portray' the claimant's impairments, and the expert must be given an opportunity to
evaluate those impairments 'as contained in the record."' 194
Other district courts in this circuit have similarly remanded cases for failure to
include established mild and moderate limitations in hypothetical questions posed to the
VE. 195 For example, in Davis v. Astrue, the ALJ determined the evidence in the record
supported a finding of only a mild limitation in the plaintiff's social functioning and a
moderate limitation in maintaining concentration( persistence, or pace. 196 However, the
ALJ omitted both of these limitations from the hypothetical posed to the VE. 197 The
court adopted the Magistrate Judge's determination that "once the ALJ found [the
plaintiff] moderately limited in maintaining concentration, persistence of pace, and

193

Bums v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (citing Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)).
194
Rutherford v. Barnhart, 399 F.3d 546, 553-54 (3d Cir. 2005) (citing
Podedwomy v. Harris, 745 F.2d 210,218 (3d Cir. 1984)) (explaining proper
interpretation of the requirement that hypothetical questions to the VE "must reflect all
of a claimant's impairments").
195
Davis v. Astrue, Civ. No. 06-3350, 2007 WL 2248830, at *3-5 (E.D. Pa. July
30, 2007). The court suggested that an ALJ's failure to specifically include credibly
established, medically determinable, moderate and mild limitations in the hypothetical
posed to the VE requires remand. Id. at *4 (citing Thompson v. Barnhart, Civ. No. 05395, 2006 WL 709795, at *14-15 (E.D. Pa. Mar. 15, 2006) ("[T]he ALJ's determination
that [the plaintiff] suffers mild restrictions in activities of daily living, moderate difficulties
in maintaining social functioning, and moderate difficulties in maintaining concentration
is not properly reflected in the hypothetical question to the VE.")).
196
Davis, 2007 WL 2248830, at *3.
191 Id.
32

mildly limited in social functioning, the ALJ was required to include those limitations in

the hypothetical question posed to the vocational expert." 198
Third Circuit precedent requires the ALJ to pose a complete and accurate
hypothetical question to the VE, specifically reflecting all impairments "as contained in
the record." 199 Here, the ALJ noted Plaintiff's mental impairments were considered in
his RFC assessment without explaining how they impacted the assessment, and he
'

failed to account for Plaintiff's medically determinable, mild limitation performing basic
mental work activities in the hypothetical posed to the VE. 200 Defendant argues the ALJ
was not required to incorporate the mild limitations into the RFC analysis because an
ALJ "may conclude that a claimant has mild limitations in one or some of the four broad
functional areas at step two, but then conclude that these limitations do not translate
into any necessary work restrictions in the RFC assessment so long as substantial
evidence supports the ALJ's conclusions." 201
Specifically, Defendant contends the ALJ relied on medical evidence in the
record showing no mental health limitations in Plaintiff's treatment in order to formulate
an RFC without the vocationally relevant mental limitations. 202 However, the ALJ, using
identical phrasing as the ALJ in Moore, acknowledged Plaintiff does suffer from
"medically determinable mental impairments of bipolar disorder and anxiety," which

198

Id. (emphasis added).
Rutherford, 399 F.3d at 553-54 (citing Podedwomy, 745 F.2d at 218).
200
0.1. 8-3 at 80-81; see Moore, 239 F. Supp. 3d at 860-61.
201
0.1.19 at 11 (quoting Chandlerv. Berryhill, Civ. No. 16-4516, 2018 WL
3575258, at *5 (E.D. Pa. July 24, 2018)).
202
D. I. 19 at 11-12.
199

33

cause "minimal limitation in [her] ability to perform basic mental work activities."203
Defendant does not offer a separate interpretation of Moore or attempt to distinguish
the striking similarities of that case to the present one. 204 Under Moore and relevant
decisions throughout this circuit, when finding Plaintiff's non-severe mental impairments
were medically supported and translated into a minimal limitation for performing basic
mental work activities, the ALJ had a duty to address the mild limitation in the
hypothetical question posed to the VE. 205
Furthermore, although the ALJ found Plaintiff experiences only a mild limitation,
rather than mild and moderate limitations as in Davis, the court suggested the ALJ
would be equally required to include an.established, medically determinable mild

203

D.I. 8-3 at 80 ("The claimant's medically determinable mental impairments of
bipolar disorder and anxiety do not cause more than minimal limitation in the claimant's
ability to perform basic mental work activities and are therefore non-severe."). The ALJ
in Moore used precisely the same language as the ALJ in the current case when
discussing the plaintiff's non-severe mental impairment, and the Moore court
interpreted the ALJ's finding as credibly establishing a '"medically determinable
affective disorder,' which causes 'a minimal limitation in [the plaintiff's] ability to perform
basic mental work activities."' Moore, 239 F. Supp. 3d at 860 (citing D.I. 8-2 at 24 ("The
claimant's medically determinable affective disorder(s) does not cause more than
minimal limitation in the claimant's ability to perform basic mental work activities and is
therefore non[-]severe.")).
204
See Moore, 239 F. Supp. 3d at 849-54; see generally D.I. 19; see also D.I. 21
at 5-6. Accordingly, the ALJ's determination that Plaintiff suffers from a work restriction
as a result of her bipolar disorder and anxiety precludes Defendant's application of the
standard set forth in Chandler. See D.I. 19 at 11 (quoting Chandler, 2018 WL 3575258,
at *5).
205
Moore, 239 F. Supp. 3d at 860-61 (internal citations omitted) ("Having found
that Moore's non-severe depression was medically supported, and having
acknowledged that there were mild limitations associated therewith, the ALJ had a duty
to address those limitations in the RFC assessment and the hypothetical question
posed to the VE.").
34

limitation in the hypothetical, even without an accompanying moderate limitation. 206
When rejecting a similarly posed hypothetical, the court noted that an ALJ's
hypothetical description to the VE must be fully and "sufficiently specific to permit the
vocational expert to render an informed opinion." 207 This interpretation is consistent
with the established requirement that a VE's opinion can only be considered substantial
evidence if it reflects "all of the claimant's impairments that are supported by the
record." 208 Thus, the ALJ was required to include Plaintiff's established limitation on her
ability to perform basic mental work activities resulting from her mild limitation adapting
and managing herself in the hypothetical posed to the VE.
To be sure, the ALJ was not required to include every impairment Plaintiff
asserted without support from the objective medical evidence, such as the intensity or
persistence of her mental impairments. 209 Nevertheless, the ALJ's own findings
documented Plaintiff's medically determinable, mild limitation of adapting and managing
herself and concluded it translates into a limitation for performing basic mental work
activities. 210 As such, the ALJ improperly failed to include this limitation in the

206

The court did not distinguish between cases requiring remand for failure to
include moderate limitations or both moderate and mild limitations in the relevant
hypothetical questions. Davis, 2007 WL 2248830, at *3-4. Instead, the court
remanded the case with direction to equally include omitted mild limitations to ensure
"all of the claimant's impairments ... supported by the record" were posed to the VE.
Id. at *4-5; see also Washington v. Astrue, Civ. No. 08-2938, 2009 WL 855893, at *1-2
(E.D. Pa. Mar. 31, 2009) (holding the ALJ erred by failing to include mild limitations for
the plaintiff's non-severe anxiety in her RFC and hypothetical posed to the VE).
207
Davis, 2007 WL 2248830, at *3.
208
Allen v. Barnhart, 417 F.3d 396,407 (3d Cir. 2005) (citing Ramirez v.
Barnhart, 372 F.3d 546, 552 (3d Cir. 2004) (emphasis added)).
209
Rutherford, 399 F.3d at 553-54.
210
D.I. 8-3 at 80.
35

hypothetical question and deprived the VE of assessing a complete and accurate
portrayal of all of Plaintiff's medically determinable impairments. 211
Therefore, the court determines the ALJ based his assessment upon substantial
evidence presented in the record but failed to properly address Plaintiff's mild
limitations in the RFC assessment and the hypothetical question posed to the VE.
Plaintiff further contends the ALJ's determination that Plaintiff is able to perform past
skilled and semi-skilled work is not supported by substantial evidence. 212 Having
concluded that remand is warranted to give the ALJ an opportunity to include all
credible limitations in the RFC assessment and VE hypothetical, the court need not
reach a determination on Plaintiff's ability to perform past relevant work at this time. 213

V.

Conclusion
For the foregoing reasons, I recommend that:
(1) Plaintiff's motion for summary judgment (D.I. 14) be granted in part and

denied in part; and
(2) Defendant's motion for summary judgment (D.I. 18) be denied in part and
granted in part.

I further recommend the court reverse the Commissioner's decision to the extent
noted herein and remand the case in part to the Commissioner with instructions to:

211

Rutherford, 399 F.3d at 553-54 (citing Podedwomy, 745 F.2d at 218); see
Moore, 239 F. Supp. 3d at 860-61. .
212
D.I. 15 at 17.
213
Moore, 239 F. Supp. 3d at 861.
36

1) Address the excluded limitations in the hypothetical question posed to the VE
as discussed in this Reccommendation; and
2) Re-assess Plaintiff's residual functional capacity and her ability to return to
past relevant work.
This Report and Recommendation is filed pursuant to 28 U.S.C. §636(b)(1)(8),
FED. R. CIV. P. 72(b)(1), and D. DEL. LR 72.1. The parties may serve and file specific
written objections within fourteen (14) days after being served with a copy of this Report
and Recommendation. Objections and responses are limited to ten (10) pages each.
The parties are directed to the Court's Standing Order in Non-Pro Se matters for
Objections Filed under FED. R. CIV. P. 72, dated October 9, 2013, a copy of which is
available on the Court's website, www.ded.uscourts.gov.

Date: July 22, 2019

Isl Mary Pat Thynge
Chief U.S. Magistrate Judge

37