KLABANOFF v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 3/24/15. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:13-6954 (KM)
COMMISSIONER OF SOCIAL SECURITY,
KEVIN MCNULTY, U.S.D.J.:
Ericka Kiabanoff brings this action pursuant to 42 U.S.C.
and 5 U.S.C.
§ 1383(c)(3) to review a final decision of the Commissioner
of Social Security (“Commissioner”) denying her claim for Title II
Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security
Income (“SSI”). Kiabanoff alleges that she is unable to engage in
substantial gainful activity because she suffers from depression, anxiety,
personality disorders, substance abuse problems, spinal conditions, and
other ailments. (P1. Br.’ 3, ECF No. 11).
For the reasons set forth below, the Commissioner’s decision is
Kiabanoff seeks DIB and SSI benefits for a period of disability
beginning October 1, 2007. (R. 260, ECF No. 7). After holding a hearing
on February 25, 2011 (Id. 39—74), Administrative Law Judge (“AU”)
This brief and the Commissioner’s opposition were submitted pursuant
to L. Civ. R. 9.1.
“R.” refers to the pages of the administrative record filed by the
Commissioner as part of her answer. (ECF No. 7).
Dennis O’Leary denied Kiabanoff’s initial application in a decision dated
March 3, 2011. (Id. 118-26). The case was then remanded to the AU by
the Appeals Council on August 30, 2012. (Id. 131—36). The AU held a
supplementary hearing on January 10, 2013, at which Kiabanoff was
represented by counsel and testified for the second time. (Id. 75—113).
The AU then denied Klabanoff’s application a second time in a decision
dated March 8, 2013. (Id. 12—34). On September 18, 2013, the Appeals
Council denied Kiabanoff’s second appeal, making the AU’s second
decision the “final decision” of the Commissioner. (Id. 1—5). Kiabanoff
now appeals that decision.
To qualify for Title II DIB benefits, a claimant must meet the
insured status requirements of 42 U.S.C. § 423(c). To be eligible for SSI
benefits, a claimant must meet the income and resource limitations of 42
U.S.C. § 1382. To qualify under either statute, a claimant must show
that she is unable to engage in substantial gainful activity by reason of
any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted (or can be expected to last)
for a continuous period of not less than twelve months. 42 U.S.C. §
a. Five-Step Process and this Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for
determining whether a claimant is entitled to benefits. 20 C.F’.R. §
404.1520, 4 16.920. Review necessarily incorporates a determination of
whether the AU properly followed the five-step process prescribed by
regulation. The steps may be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in
substantial gainful activity since the onset date of the alleged
disability. 20 C.F.R.
§ 404.1520(b), 416.920(b). If not, move to
Step 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.
4 16.920(c). If the claimant has a severe impairment, move to
Step 3: Determine whether the impairment meets or equals
the criteria of any impairment found in the Listing of
Impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A. If so,
the claimant is automatically eligible to receive benefits; if
not, move to step four. Id.
§ 404.1520(d), 416.920(d).
Step 4: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to
perform past relevant work. Id.
§ 404. 1520(e)—(f), 416.920(e)—(f). If
not, move to step five.
Step 5: At this point, the burden shifts to the SSA to
demonstrate that the claimant, considering her age,
education, work experience, and RFC, is capable of
performing jobs that exist in significant numbers in the
national economy. 20 C.F.R.
§ 404.1520(g), 4 16.920(g); see
Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 9 1—92 (3d Cir.
2007). If so, benefits will be denied; if not, they will be
As to all legal issues, this Court conducts a plenary review.
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AU’s findings, as long as they
are supported by substantial evidence. Jones v. Barnhart, 364 F.3d 501,
503 (3d Cir. 2004) (citing 42 U.S.C.
§ 405(g)). Where facts are disputed,
this Court will “determine whether the administrative record contains
substantial evidence supporting the findings.” Sykes v. Apfel, 228 F.3d
259, 262 (3d Cir. 2000). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”
Zirnsak u. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (internal quotation
and citation omitted). That “is more than a mere scintilla but may be
somewhat less than a preponderance of the evidence.” Id. (internal
quotation and citation omitted).
[I]n evaluating whether substantial evidence supports the
leniency should be shown in establishing
the claimant’s disability, and
responsibility to rebut it should be strictly construed. Due
regard for the beneficent purposes of the legislation requires
that a more tolerant standard be used in this administrative
proceeding than is applicable in a typical suit in a court of
record where the adversary system prevails.
Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations
and quotations omitted). When there is substantial evidence to support
the AU’s factual findings, this Court must abide by them. See Jones,
364 F.3d at 503 (citing 42 U.S.C. § 405(g)); Zirnsak, 777 F.3d at 610—11
(“[W]e are mindful that we must not substitute our own judgment for
that of the fact finder.”).
This Court may, under 42 U.S.C. § 405(g) and the Third Circuit’s
Podedworny opinion, affirm, modify, or reverse the Secretary’s decision,
with or without a remand to the Secretary for a rehearing. Podedwomy v.
Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Commissioner, 235 F.
App’x 853, 865—66 (3d Cir. 2007).
b. The Appeals Council’s Order
On remand, the Appeals Council directed the AU to:
Give further consideration to the examining and nontreating
source opinions pursuant to the provisions of 20 C.F.R. §
404.1527 and 4 16.927 and Social Security Rulings 96-5p
and 96-6p, and explain the weight given to such opinion
Further evaluate [Klabanoff’sl subjective complaints and
provide rationale in accordance with disability regulations
pertaining to evaluation of symptoms (20 C.F.R. § 404.1529
and 416.929) and Social Security Ruling 96-7p.
Further evaluate [Kiabanoff’s] mental impairment in
accordance with the special technique described in 20 C.F.R.
§ 404. 1520a and 416.920a, documenting application of the
technique in the decision by providing specific findings and
appropriate rationale for each of the functional areas
described in 20 C.F.R. § 404.1520a(c) and 416.920a(c).
Give further consideration to [Kiabanoff’s] maximum residual
functional capacity and provide appropriate rationale with
specific references to evidence of record in support of the
assessed limitations (20 C.F.R. § 404.1545 and 4 16.945
and Social Security Rulings 85-16 and 96-8p).
If warranted by the expanded record, obtain evidence from a
vocational expert to c1ariir the effect of the assessed
limitations on the claimant’s occupational base (Social
Security Ruling 83-14).
c. The AU’s decision
On remand, the AU concluded that Kiabanoff was not disabled.
His determinations are as follows.
At step one, the AU determined that Kiabanoff had not engaged in
substantial gainful activity since October 1, 2007, her alleged disability
onset date. (R. 25).
At step two, the AU found that Kiabanoff had the following severe
impairments: “lower back pain; neck pain; left shoulder pain; obesity;
major depression; bipolar disorder; and a history of polysubstance
abuse, now in remission.” (Id.).
At step three, the AU determined that none of Klabanoff’s
impairments or combinations of impairments met or medically equaled
the severity of one of the listed impairments in 20 C.F.R. Pt. 404 Subpt.
P, App. 1 (the “Listings”). (Id. 25—26).
At step four, the AU found that Kiabanoff could “lift and carry up
to 20 pounds occasionally and 10 pounds frequently; stand/walk 6
hours in an 8-hour day; sit 6 hours in an 8-hour day; and perform
unlimited pushing and/or pulling within the given weight restrictions.”
(Id. 28). Based on this residual functional capacity (“RFC”) and the
“combined effects of medication and depression,” the AU found that
Kiabanoff could perform “jobs of a simple and repetitive nature involving
1-2 step processes to completion.” (Id.). The AU also determined that
Kiabanoff was not able to perform any past relevant work. (Id. 33).
At step five, the AU considered Kiabanoff’s “age, education, work
experience, and residual functional capacity,” and determined that she
could perform jobs that exist in significant numbers in the national
economy. (Id.). As noted above, such a finding at step five requires that
benefits be denied.
In his decision, the AU considered the following evidence: (1)
treatment records from the Bergen Regional Medical Center; (2) group
treatment records from the Quest Program; (3) hospitalization records for
suicidal ideation and substance abuse as well as rehabilitation treatment
records from the MICA program; (4) notes from a disability interviewer on
April 2, 2009; (5) a report by consultative examiner Dr. Hasson; (6)
Kiabanoff’s testimony from her hearing before the AU on January 10,
2013; (7) a report from non-examining State Agency medical consultant
Dr. 1-lecker; (8) drug screens performed on Klabanoff; (9) treatment notes
from Dr. Ramnanan; (10) treating records from psychiatrists Dr. Useine
and Dr. Hossaine; (11) treating records from Dr. Nagendra; and (12) a
Third Party Function report by Klabanoff’s friend Ms. Maria Vega. (Id.
d. Kiabanoff’s appeal
Kiabanoff argues that the Commissioner’s decision is not
supported by substantial evidence. Specifically, Kiabanoff argues that the
AU: (1) ignored the weight of the evidence showing that she could not
engage in substantial gainful activity; (2) erred in evaluating her
credibility and ignoring her subjective complaints of pain; (3) improperly
evaluated Kiabanoff’s mental impairments; (4) failed to consider the
findings of Dr. Hasson; and (5) failed to consider Klabanoff’s obesity
pursuant to SSR
i. The AU properly considered the evidence of
Kiabanoffs ability to engage In some form of
substantial gainful activity (Plaintiffs Point I)
Kiabanoff argues that there was no evidence in the record to
support the AU’s finding that she could engage in some form of
substantial gainful activity. (P1. Br. 5 (“Point I”)). Specifically, Kiabanoff
argues that (1) “[t]here are no medical reports indicating that Kiabanoff
could be employed” (Id. 5, 7); (2) the AU’s finding is contrary to medical
reports of Klabanoff’s “debilitating pain subsequent to her spinal surgery
and continuing” (id. 7); and (3) the AU improperly weighed the evidence
presented by Klabanoff, just as in Reddick v. Chater, 157 F.3d 715 (9th
Cir. 1998) (id. 8). Kiabanoff’s arguments are unpersuasive.
There are indeed medical reports indicating that Klabanoff could
be employed. Specifically, there are reports indicating Klabanoff was
employed, for over a year, during her alleged period of disability. (R. 266,
407—08). Kiabanoff was employed at a laundromat from February 2008 to
at least June 2009. (Id. 303—04; 407 (reporting that Klabanoff had
worked for eighteen months)). During this period, Kiabanoff worked
between twenty five and thirty hours per week and opened the business
daily at 6:30am. (Id. 407).
Kiabanoff’s argument that the AU discounted evidence of
Klabanoff’s debilitating spinal pain is also unconvincing. The AU went
into great detail discussing Kiabanoff’s spinal problems. The AU
discussed her back and shoulder pain following a motor vehicle accident
on December 29, 2009, the MRIs she underwent following the accident,
and her treatment history with Dr. Ramnanan and Dr. Nagendra. (Id. 2324). However, the AU also noted that the evidence did not support the
conclusion that Kiabanoff’s pain was debilitating. For example, the AU
noted that Klabanoff’s report of “a flare-up of pain related to lifting and
carrying her 4-year-old son in and out of the car.
testimony at the January 10, 2013 hearing that she cannot lift more
than 10 pounds.” (Id. 29, 613, 616). Notes from Dr. Ramnanan on
August 6, 2010, following Kiabanoff’s motor vehicle accident, indicate
that the range of motion in her spine was within normal limits and that
her shoulder pain was under good control. (Id. 29, 445). Most important,
the record demonstrated that even after her motor vehicle accident,
Klabanoff lived alone and was able to carry out the functions of daily
living, including cooking, shopping, cleaning, and doing laundry (Id. 27,
92—94, 593). She also reported having no difficulties with dressing,
bathing, shaving, foot care, hair care, oral hygiene, or use of bathroom or
kitchen appliances. (Id. 593).
As to Klabanoff’s third argument, Reddick v. Chater, 157 F.3d 715
(9th Cir. 1998), is not analogous to this case. In Reddick, the Ninth
Circuit found that an AU had improperly rejected physician opinions
because they were based on the claimant’s subjective complaints of
chronic fatigue syndrome. 157 F’.3d at 726. The Ninth Circuit noted that
“chronic fatigue syndrome is defined as “sef-reported persistent or
relapsing fatigue lasting six or more consecutive months.” Id. (citing
Centers for Disease Control, The Chronic Fatigue Syndrome: A
Comprehensive Approach to its Definition and Study, 121 Annals of
Internal Medicine 954 (1994)) (emphasis in opinion but not cited source).
Because “the presence of persistent fatigue is necessarily self-reported,”
the AU was wrong to discount the physician reports merely because
they were based on the claimant’s subjective complaints. Id. As the Third
Circuit emphasized, “highly relevant to the Reddick court was the fact
[that] chronic fatigure syndrome..
was at issue.” Morris v. Bamhart, 78
F. Appx 820, 824 (3d Cir. 2003). Because Kiabanoff does not allege
chronic fatigue syndrome, nor any other analogous self-reported
disorder, Reddick is inapplicable here.
Therefore, Kiabanoff’s arguments regarding her inability to perform
substantial gainful activity are unpersuasive.
ii. The AU properly evaluated Klabanoffs credibility
(Plaintiffs Points II and III)
Kiabanoff argues that the AU erred in evaluating her credibility by
“ignor[ing the evidence of pain suffered by [Kiabanoff],” in violation of
SSR 96-’Tp. (P1. Br. 9—12); see Titles II & Xvi: Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an Individual’s Statements,
SSR 96-7P (S.S.A. July 2, 1996). The AU’s findings as to Klabanoff’s
credibility, however, are supported by substantial evidence.
SSR 96-7P provides:
In determining the credibility of the individual’s statements,
the adjudicator must consider the entire case record,
including the objective medical evidence, the individual’s
own statements about symptoms, statements and other
information provided by treating or examining physicians or
psychologists and other persons about the symptoms and
how they affect the individual, and any other relevant
evidence in the case record. An individual’s statements about
the intensity and persistence of pain or other symptoms or
about the effect the symptoms have on his or her ability to
work may not be disregarded solely because they are not
substantiated by objective medical evidence.
The AU’s credibility determination “must contain specific reasons for the
finding on credibility, supported by the evidence in the case record.” SSR
96-7P; see also 20 C.F.R. § 404.1529(b), 4 16.929(b). In this case, the
AU did exactly what was required of him by giving specific reasons for
his credibility findings that were supported by evidence in the record.
In evaluating Kiabanoff’s impairments in the four functional areas
at step three, the AU used portions of her testimony from the January
10, 2013 hearing. The AU cited Kiabanoff’s testimony regarding living
alone, watching TV, reading, and spending time with her mother to
substantiate his finding the Kiabanoff has only mild limitation in daily
living. (R. 27, 92—94, 101, 593). For social functioning, the AU noted
that although Kiabanoff testified to everyone getting on her nerves, that
records showed that Kiabanoff “was stable, had some contact with her
children, and even reported having a good Mother’s Day.” (Id. 27, 85,
At step four, the AU found that Kiabanoff’s testimony regarding
“the intensity, persistence and limiting effects of [her] symptoms [wasi
not entirely credible” and explained his reasoning for this finding. (Id.
For instance, although Kiabanoff claimed to have disabling neck,
left shoulder, and lower back pain, this claim was contradicted by
evidence in the record. (Id. 29). Medical records from 2011 regarding
Kiabanoff’s back pain included an X-ray that showed only mild
degenerative joint disease. (Id. 29, 605). Also in 2011, medical records
regarding Klabanoff’s knee pain showed that Klabanoff had full range of
motion in her knee and no instability. (Id. 29, 605). Records from Dr.
Ramnanan in 2010 also showed normal strength in Kiabanoff’s upper
and lower extremities, normal sensation, intact reflexes, normal motion
of the cervical spine, and good control of Kiabanoff’s cervical and left
shoulder pain. (Id. 29, 44 1—48, 449—73).
The record showed that although Kiabanoff reported that she could
not lift more than ten pounds, records from Bergen Regional Medical
Center showed that Kiabanoff had carried her four-year-old son from the
car and into the house. (Id. 29, 90, 613, 616). (She did say, however, that
this caused a flare-up of pain.)
Klabanoff testified that no doctor had ever recommended surgery
for her pain. (Id. 88). Rather, Klabanoff has undergone less invasive
treatment for her pain, including physical therapy, chiropractic therapy,
prescriptions for Percocet and Flexeril, and lumbar epidural injections.
(Id. 29, 441—48, 449—73, 637—652).
The AU also noted that although Klabanoff testified that she was
fired from her work at a laundromat because of her back pain, her
treatment notes from Bergen Regional Medical Center on July 2009 state
that she was fired for letting her friends use the laundry machines for
free. (Id. 29—30, 81, 100, 561).
Despite Kiabanoff’s claims that she naps during the day and has
no energy, treatment notes indicated that Klabanoff was performing
several activities of daily living, including visiting with her children on
the weekends,. (Id. 29, 92—94, 101, 593).
Finally, although Kiabanoff alleged a disability onset date of
October 1, 2007, she testified to not knowing anything about the
selection of that date. (Id. 29, 91).
Therefore, the AU had a sufficient basis to find that, in light of the
entire record, Klabanoff’s testimony was not entirely credible. (Id. 28).
iii. The AU properly evaluated Klabanoff’s mental
impairments under 20 C.F.R.
(Plaintiff’s Point IV)
Klabanoff next argues that the AU violated the Appeals Council’s
remand order to evaluate Klabanoff’s mental impairments in accordance
with the special technique in 20 C.F.R. § 404.1520a and 416.920a. (P1.
Br. 13). I find, however, that the AU properly applied the special
technique and had substantial evidence to support his conclusions.
Under the technique, the AU must first “evaluate [a claimant’s]
“pertinent symptoms, signs, and laboratory findings to determine
whether [the claimant has] a medically determinable mental
impairment(s).” 20 C.F.R. § 404.1520a(b)(1), 416.920a(b)(1). Second, the
AU must “rate the degree of functional limitation resulting from the
impairment(s) in accordance with paragraph (c)” of the regulation.” 20
C.F.R. § 404.1520a(b)(2), 416.920a(b)(2). Paragraph C identifies the four
broad functional areas in which the AU must evaluate the degree of a
claimant’s limitation: (1) activities of daily living; (2) social functioning;
(3) concentration, persistence, or pace; and (4) periods of
decompensation. 20 C.F.R. § 404.1520a(c)(3), 416.920a(c)(3). An AU
must use the following five-point scale to rate the degree of limitation in
the first three functional areas: none, mild, moderate, marked, and
extreme. 20 C.F.R. § 404. 1520a(c)(4), 416.920a(c)(4). The fourth
functional area—episodes of decompensation—is measured by the
number of periods of decompensation (none, one or two, three, four or
If the AU finds that a mental impairment is severe, the AU must
then “determine if it meets or is equivalent in severity to a listed mental
by comparing the medical findings about [the] impairment(s)
and the rating of the degree of functional limitation to the criteria of the
appropriate listed mental disorder.” 20 C.F.R. § 404. 1520a(d)(2),
416.920a(d)(2). If the claimant’s impairment or combination of
impairments don’t meet or equal the severity of a listed disorder, the AU
goes on to evaluate a claimant’s residual functional capacity. 20 C.F.R.
§ 404.1 520a(d)(3), 4 16.920a(d)(3).
In this case, the AU described Kiabanoff’s symptoms, signs, and
medical findings. (R. 18—25). He then found the following severe mental
impairments: major depression; bipolar disorder; and a history of
polysubstance abuse, now in remission. (Id. 25).
The AU then went on to evaluate, based on the evidence, the
degree of Klabanoff’s limitations in the four broad functional areas,
finding: (1) mild restriction in daily living; (2) moderate difficulties in
social functioning; (3) moderate difficulties in concentration, persistence,
or pace; and (4) one or two episodes of decompensation. (Id. 27). The AU
supported his conclusions with references to Kiabanoff’s treatment
records, her hospitalization records, a third party report from Kiabanoff’s
friend, Ms. Vega, and her employment records. (Id.).
To support his finding in the area of daily living, the AU cited a
report by Dr. Hasson stating that Kiabanoff lives alone, eats out, and
shops on her own. (Id. 27, 407). The ALAJ also cited Kiabanoff’s testimony
at the January 10, 2013 hearing, during which she confirmed that she
lives alone and stated that she watches TV, reads, and spends time with
her mother often. (Id. 27, 92—94).
To support his finding in the area of social functioning, the AU
cited a report by Ms. Vega, in which she stated that Kiabanoff does not
get along with people well, but also that Klabanoff’s friends and mother
help her pay bills. (Id. 27, 331, 333).
The AUJ also noted that in 2009 Klabanoff mentioned meeting a
new boyfriend. (Id. 27, 564). Finally, the AU noted that although
Kiabanoff claimed not to get along well with others, that she had contact
with her children and reported having a good Mother’s Day in 2011. (Id.
27, 85, 107, 606—07).
For the area of concentration, persistence, or pace, the AU
report from Dr. Hasson finding mild impairment in concentration. (Id. 27,
409). The AU
also noted that even when Kiabanoff was hospitalized in
2008, she was able to “do serial 3’s, calculate the number of nickels in
$1.35, and remember 3/3 objects in 5 minutes”. (Id. 27, 402). The AU
cited to certain treatment records showing that Klabanoff was impulsive
and others showing that she had intact memory, concentration, and
attention. (Id. 27, 524—73, 597—636).
Finally, in analyzing episodes of decompensation, the AU
that Kiabanoff had experienced one or two such episodes. From
December 9 to December 17, 2008, Kiabanoff was hospitalized for
suicidal ideation and possibly also drug use. (Id. 27, 366—405). From
December 18 to December 24, 2008, Kiabanoff attended a rehabilitation
program. (Id. 27, 524—73).
After analyzing the four functional areas, the AU determined that
because Klabanoff did not have “marked” limitation in at least two
functional areas, or marked limitation in one functional area along with
“repeated” episodes of decompensation, and because there was no
evidence showing Kiabanoff would be unable to function outside of a
highly supportive living environment, her mental impairments did not
meet the paragraph B or C criteria in the Listings for Affective Disorders,
Personality Disorders, or Substance Addiction Disorders. (Id. 27); 10
§ 404.1520a(d)(2), 416.920(d)(2); 10 C.F.R. Pt. 404, Subpt. P,
App. 1, Listings 12.04, 12.08, 12.09.
Therefore, pursuant to 20 C.F.R.
§ 404. 1520a(d)(3) and
416.920a(d)(3), the AU went on to analyze Kiabanoff’s residual
Kiabanoff argues that (1) the AU “neglected to consider and
incorporate [hen substantial psychiatric history”; and (2) the AU failed
to explicitly mention 20 C.F.R. 404.1520a or 416.920a in his analysis.
(P1. Br. 14).
As for the first argument, it is clear that the AU discussed
Kiabanofi’s psychiatric history in great detail. (Id. 18—25). The AU also
justified his findings about Kiabanoff’s limitations in the four functional
areas with evidence from the record. (Id. 27). I find, and Kiabanoff does
not dispute, that the AU had substantial evidence for each of his
determinations in the four functional areas. Kiabanoff’s long psychiatric
history and record of traumas are certainly not insignificant; however,
the AU had substantial evidence for his conclusion that her mental
impairments do not meet or exceed the criteria of any Listings in the
As for Kiabanoff’s second argument, there is no requirement that
an AU explicitly cite to 20 C.F.R. § 404.1520a or 416.920a in his
analysis. See Jones v. Bamhart, 364 F.3d 501, 505 (3d Cir. 2004) (An
AU is not required “to use particular language or adhere to a particular
format in conducting his analysis.”). In this case, it is clear that the AU
adhered to the analysis required by 20 C.F.R. § 404.1520a and
416.920a. A reference to the regulation by name is unnecessary.
The AU properly evaluated Kiabanoff’s mental impairments in
accordance with the special technique in 20 C.F.R. § 404. 1520a and
iv. The AU properly analyzed Dr. Hasson’s findings
(Plaintiff’s Point V)
Klabanoff next argues that the AU violated the Appeals Council’s
order to consider the findings of Dr. Charles Hasson, a consultative
examining physician. (P1. Br. 14—15). Klabanoff acknowledges that the
AU did include Dr. Hasson’s findings in his decision, but says that “[t]he
mere recitation of the report does not suffice,” especially because Dr.
Hasson assigned a Global Assessment of Functioning (GAF) score of 50
to Kiabanoff. (Id. 15; see 20—21). I find that the AU
did not merely recite
Dr. Hasson’s findings; rather, the AU properly evaluated the findings
and gave reasons for rejecting Dr. Hasson’s estimated GAF score.
While an AU need not itemize every piece of evidence considered,
the AU is required to address evidence that, if considered, would lead to
a contrary result. Adomo v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994)
(citations omitted) (explaining that the AU must “provide some
explanation for a rejection of probative evidence which would suggest a
contrary disposition” and remanding for failure to mention and refute
contradictory evidence). The AU
may “properly accept some parts of the
medical evidence and reject other parts, but she must consider all the
evidence and give some reason for discounting the evidence she rejects.”
Id. (citing Stewart v. Secretary of H.E.W., 714 F.2d 287, 290 (3d Cir.
1983)); see also Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122
(3d Cir. 2000) (remanding due to AU’s failure to “review all of the
pertinent medical evidence” and explain “his conciliations and
In this case, the AU considered summarized Dr. Hasson’s findings
(R. 20—21), relied on them to a certain extent, and properly explained his
reasons for assigning limited weight to them.
At step two of the five-step analysis, the AU used Dr. Hasson’s
findings of “mild impairment” in concentration to conclude that Kiabanoff
has moderate difficulties in the functional area of concentration,
persistence, or pace. (Id. 27).
A GAF (Global Assessment Functioning) score is a scale used by the
American Psychiatric Association to evaluate mental disorders. See Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed.
At step four, the AU
discussed Dr. Hasson’s findings while
evaluating Kiabanoff’s residual functional capacity. The AU noted that
Dr. Hasson found Kiabanoff to be suffering from “depressive disorder,
NOS; rule out bipolar disorder; crack cocaine dependence; and a
personality disorder, NOS; with a current and prior year GAF of 50.” (Id.
30). The AU decided to give “limited weight” to Dr. Hasson’s opinion
because it was inconsistent with other evidence:
A GAF score of 50 reflect serious impairment in social,
occupational, or school functioning, including the inability to
keep a job, but it appears that the claimant was functioning
at a higher level at that time, since she was working at the
laundromat up to that point.
Kiabanoff does not specify why this analysis is insufficient in her
view. Rather, she generally asserts that Dr. Hasson merely repeated Dr.
Hasson’s findings without actually considering them. Clearly, that is not
the case. The AU sufficiently considered Dr. Hasson’s findings and gave
appropriate reasons for assigning the findings limited weight. The AU
even relied on the findings to a certain extent. No more was required.
v. The AU properly evaluated Kiabanoffs obesity
(Plaintiffs Point VI)
Klabanoff argues that the AU violated the Appeals Council’s
directive to evaluate Kiabanoff’s obesity on remand pursuant to SSR 024
‘p. (P1. Br. 15—16 (“Point V15”)). However, the AU clearly considered
Klabanoff’s obesity throughout the five-step process, as required by the
Social Security regulations.
SSR 02- ip requires that an AU consider a claimant’s obesity throughout
the five-step process. See Titles II & Xvi: Evaluation of Obesity, SSR 02- 1P
(S.S.A. Sept. 12, 2002).
Kiabanoff’s brief erroneously titles this “Point IV.”
At step two, the AU found that Kiabanoff’s obesity was a “severe”
impairment. (R. 25).
At step three, the AU noted thatthere is no listing for obesity, but
that obesity may increase the severity of other impairments and thereby
meet the criteria of a listing. (Id. 26). However, because the AU found
that Kiabanoff was able to “perform the activities of daily living, and
socialize to a certain extent,” he concluded that her obesity, even when
combined with her other impairments, did not meet or equal the severity
of any of the listed impairments in 20 C.F.R. Pt. 404 Subpt. P, App. 1.
At step four, the AU took Kiabanoffs obesity into account in
determining her residual functional capacity. Specifically, the AU
explained that although obesity can cause physical and mental
limitations, “[i]n the present case, the claimant remains able to perform
the activities of daily living and live independently despite her obesity
and her other physical and mental impairments.” (Id. 32). This
conclusion was supported by evidence in the record—for example,
treatment records showing that Kiabanoff was able to find a job at a
laundromat and work there for over a year. (Id. 30; 409—410).
Beyond generally arguing that the AU “blithely conclude[d]” that
Klabanoff could function despite her obesity (see P1. Br. 16), Kiabanoff
makes no specific arguments as to why the AU’s consideration of her
obesity was insufficient. Klabanoff points to some evidence to suggest
that she has difficulty functioning, but that is not the relevant inquiry.
There is substantial evidence in the record to support the AU’s findings;
that some evidence goes the other way does not require reversal. Indeed,
Kiabanoff’s record citations are to the AU’s opinion itself (see id. (citing
id. 24—27)), only highlighting the fact that the AU considered all of the
For the foregoing reasons, the AU’s decision is AFFIRMED.
Dated: March 24, 2015
United States District Judge
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