WINTERS v. COMMISSIONER OF SOCIAL SECURITY

Filing 10

OPINION. Signed by Judge Kevin McNulty on 12/9/2015. (anr)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MARYANN WINTERS,

Civ. No. 15-0 1357 (KM)

Plaintiff,
OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Maryann Winters brings this action under 42 U.S.C.

§ 405(g) and

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”). Winters alleges that she is unable to engage in substantial gainful
activity because she suffers from a number of physical and mental ailments,
including, fibromyalgia, arthritis, and depression.
For the reasons set forth below, the decision of the Administrative Law
Judge (“AU”) is REMANDED as to one issue. See Section IIl.A.2 & 3, pp. 12—
17, infra.
I.

BACKGROUND
Winters seeks to reverse or remand an AU’s finding that she was not

disabled from October 31, 2009 through the date of the AU’s decision, October
22, 2013. Winters applied for DIB on’ April 8, 2011, for a period of disability
beginning October 31, 2009. (Tr.’ 182-188) Her claims were first denied on
September 12, 2011, and again on reconsideration on May 17, 2012. (Tr. 113“Tr.” refers to the pages of the administrative record filed by the Commissioner
as part of her answer. (Dkt. No. 5)

117; 12 1-123) On July 12, 2012, she filed a request for a hearing. (Tr. 124) On
June 24, 2013, a hearing was held, at which Winters appeared and was
represented by counsel. (Tr. 50-88) A vocational expert, Tanya Edghill, also
appeared and testified at the hearing. (Tr. 8 1-84) On October 22, 2013, AU
Barbara Dunn denied Winters’s application for DIB. (Tr. 36-48) On December
24, 2014, the Appeals Council declined to review AUJ Dunn’s decision, making
the AU’s decision the final act of the Commissioner. (Tr. 1—6) Winters now
appeals.

II.

APPLICABLE STANDARDS AND BACKGROUND
To qualify for Title II DIB benefits, a claimant must meet the insured

status requirements of 42 U.S.C.

§ 423(c). To do so, 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.

§ 423(d)(1)(A).

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 CFR

§ 404.1520. 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 CFR
404.1520(b). If not, move to step two.
Step 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.

§ 404.1520(c). If the

claimant has a severe impairment, move to step three.
2

§

Step 3: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20
CFR 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).

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). 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 CFR

§ 404.1520(g); see

Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91—92 (3d Cir. 2007). If
so, benefits will be denied; if not, they will be awarded.
As to all legal issues, this Court conducts a plenary review. Schaudeck v.
Comm’rof Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to factual issues, this
Court will adhere to the AU’s findings, as long as they are supported by
substantial evidence. Jones v. Bamhart, 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.” Zimsak v. Colvin, 777 F.3d 607, 610 (3d
Cir. 2014) (internal quotation and citation omitted). Substantial evidence “is
more than a mere scintilla but may be somewhat less than a preponderance of
the evidence.” Id. (internal quotation and citation omitted).
[Ijn evaluating whether substantial evidence supports the AU’s
findings
leniency should be shown in establishing the claimant’s
disability, and
the Secretary’s 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
...

...

3

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, however, 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—il (“[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), affirm, modify, or reverse the

Secretary’s decision, or it may remand the matter to the Secretary for a
rehearing. Podedwomy v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’r of Soc. Sec., 235 F. App’x 853, 865—66 (3d Cir. 2007).
Outright reversal with an award of benefits is appropriate only when a
fully developed administrative record substantial evidence which, on the whole,
establishes that the claimant is disabled and entitled to benefits. Podedworny,
745 F.2d at 22 1-222; Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000); see
also Bantleon v. Comm’r of Soc. Sec., 2010 WL 2802266, at *13 (D.N.J. July 15,
2010). Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five step inquiry. See Podedwomy, 745 F.2d at 22 1—22. Remand is also proper
if the ALl’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 119—20 (3d Cir. 2000); Leech v. Barnhart, 111 Fed. App’x
652, 658 (3d Cir. 2004)(”We will not accept the ALYs conclusion that Leech
was not disabled during the relevant period, where his decision contains
significant contradictions and is therefore unreliable.”). It is also proper to
remand where the AU’s findings are not the product of a complete review
which “explicitly’ weigh[s] all relevant, probative

and available evidence” in the

record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994).

4

B. The AU’s decision
AU Dunn concluded that from October 31, 2009, through October 22,

2013, Winters was not disabled. (Tr. 4 1-48) ALT Dunn’s determinations may be
summarized as follows.
At step one, the ALT determined that Winters had not engaged in
substantial gainful activity since October 31, 2009, her alleged disability onset
date. (Tr. 41)
At step two, the ALT found that Winters had the following severe
impairments: “tachycardia, Hepatitis B and C, degenerative joint disease,
bipolar disorder, fibromyalgia, osteoarthritis, major depressive disorder,
cervical and lumbar radiculopathy, anxiety, hypothyroidism, obesity,
rheumatoid arthritis, dysthymic disorder and history of substance abuse.” (Id.)
At step three, the ALT determined that Winters’s impairments, alone or
in combination, did not meet or medically equal the severity of one of the listed
impairments in 20 CFR Pt. 404 Subpt. P, App. 1 (the “Listings”). (IcL)
The ALT then found that Winters has the residual functional capacity
(“RFC”) to
perform light work
[lift no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds]
except that she cannot climb any ladders, ropes or scaffolds; she is
limited to occasional climbing of ramps and stairs, balancing,
kneeling, stooping, crouching, or crawling; she must avoid
exposure
to
hazards
(heights! dangerous
machinery)
or
temperature extremes; she is limited to frequent bilateral handling
and she is limited to simple routine work with no public contact
and is limited to occasional co-worker or supervisory contact.
...

(Tr. 43)
At step four, the ALT determined that, based on her RFC, Winters is
unable to perform any past relevant work. (Tr. 47) The ALT found that
Winters’s past relevant work, as categorized by the vocational expert, was in
customer service, data entry, and clerical work. (Id.) The vocational expert

5

testified that those positions could not be filled by someone with Winters’s
RFC. (Tr. 80-81) The ALJ noted that Winters was 44 years old on her alleged
disability onset date, which put her in the category of “younger individual age.”
(Tr. 47) The AU also found that Winters “has at least a high school education”
and is able to communicate in English. (Id.) Transferability of job skills was
“not material to the determination of disability” because Winters was not
disabled under the Medical-Vocational Rules regardless of transferability of job
skills. (Id.)
At step five, the AU considered Winters’s “residual functional capacity,
age, education, and work experience” and determined that Winters 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.
C. Winters’s appeal
Winters argues that the AU erred in a few ways. First, she contends that
the AU

erred at step three when she determined her RFC. She asserts two

errors in this respect: (1) the AU “failed to properly weigh the medical
evidence” by discounting the opinions of treating physicians and giving more
weight to the opinions of non-treating physicians (P1. Br. 17-25, Dkt. No. 8);
2
and (2) the AU “failed to properly evaluate [Winters’s] credibility” (id. 25-27). In
addition, Winters argues that the AU erred at step five when she “relied on
flawed vocational expert testimony” by posing a hypothetical question to the
vocational expert that did not account for all of Winters’s impairments. (Tr. 2730)
I do not find any errors of law or procedure in the AU’s decision; the
AU provided reasons to support her decision and explained her reasoning.
However, as discussed in Section III.A.2, pp. 12—13, infra, there is an
inaccuracy in the AUJ’s decision involving a fact on which the AU relies—

This brief and the Commissioner’s opposition were submitted pursuant to L.
Civ. R. 9.1.

2

6

namely, the frequency of references to “multiple bilateral [fibroymyalgia] trigger
points” in the record. (Tr. 45) To assure that all of the relevant facts are
accounted for in the AU’s decision, I will remand for clarification on this issue,
and related credibility issues, Section IIIA.3. I do not suggest that on remand
the AU’s decision must be different—it may be or it may not be. I remand only
so that the AU may clarilr that her decision is supported by a review of all the
relevant evidence.
III.

ANALYSIS
A.

AU’s step three analysis

Winters argues that the AU erred at step three, resulting in an

inaccurate RFC determination. First, according to Winters, the AU gave too
much weight to the opinions of non-treating physicians and failed to give
enough weight to the opinions of Winters’s treating physicians. Second,
Winters argues that the AU erred in assessing Winters’s credibility.
1. AU’s consideration of the medical evidence
Winters argues that the AU “failed to properly weigh the medical
evidence” in her case. (P1. Br. 17) She contends that the opinions of her
physicians, Dr. Chung (a rheumatologist) and Dr. De Alwis (a psychiatrist),

were entitled to controlling weight under 20 CFR § 404. 1527(c)(2). In the
alternative, she asserts that if their opinions were not entitled to controlling
weight, they were at least entitled to deference. (Id. 22) She argues that the AU
erred by discounting the opinions of these physicians and instead giving more
weight to non-examining physicians. (Id. 20, 24) I am not persuaded by those
legal arguments. (But see factual discussion at Section III.A.2 & 3, pp. 12—17,
infra.)

In general, the opinion of a medical professional who has treated the
claimant is entitled to deference. 20 CFR

§ 404.1527(c)(2)(”Generally, we give

more weight to opinions from your treating sources, since these sources are
likely to be the medical professionals most able to provide a detailed,
7

longitudinal picture of your medical impairment(s)).” But the opinion of a
treating source must be given “controlling weight” only when that opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the
claimant’sl case record.” Id. The Third Circuit has held that unless there is
contradictory medical evidence in the record, an AU may not reject a treating
physician’s opinion. See Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 355
(3d Cir. 2008). An AU’s unsupported judgment, speculation, or lay opinion is
not sufficient to outweigh a treating physician’s opinion. Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2000).
If the treating physician’s opinion is not accorded controlling weight, the
AU must weigh it, like any other medical opinion, in light of the factors set

forth in 20 CFR § 404.1527. See 20 CFR § 404.1527(c)(1-6)(ALJ must consider:
(i) the examining relationship between the claimant and the doctor; (ii) the
treatment relationship between the claimant and the doctor; (iii) the extent to
which the opinion is supported by relevant evidence; (iv) the extent to which
the opinion is consistent with the record as a whole; and (v) whether the doctor
providing the opinion is a specialist). Although “contradictory medical evidence
is required for an AU to reject a treating physician’s opinion outright, such an
opinion may be afforded more or less weight depending on the extent to which
supporting explanations are provided.” Plummer v. Apfel, 186 F.3d 422, 429 (3d
Cir. 1999) (citation omitted).
As an initial matter, the ALT did not flatly reject the opinions of Drs.
Chung and De Aiwis. The ALT credited their diagnoses in finding that Winters
suffered from numerous severe impairments, including fibromyalgia,
osteoarthritis, rheumatoid arthritis, bipolar disorder, major depressive
disorder, and anxiety. (Tr. 41) The ALT did find, however, that their assessment
of Winters’s functional limitations based on her impairments during the period
of alleged disability was not supported by the record. (Tr. 45-46) “The law is
clear

...

that the opinion of a treating physician does not bind the ALT on the
8

issue of functional capacity.” Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir.
2011) (citation omitted). With the exception of the factual issue discussed infra,
I find that the AU

provided sufficient reasoning to support her weighing of the

evidence regarding Winters’s functional limitations.
With respect to Winters’s limitations due to physical impairments, the
AU found (1) inconsistencies and a lack of factual support within Dr. Chung’s

own records, and (2) inconsistencies between Dr. Chung’s opinion and the rest
of the record. See 20 CFR

§ 404. 1527(c)(3-4)(instructing AU’s to consider

whether an opinion is supported by “relevant evidence” and “consistent with
the record as a whole”) .3 For example, the AU noted that on Dr. Chung’s
Impairment Questionnaire from September 2013, he listed “fibromyalgia” as
the primary diagnosis at question 2.a but did not check the space for “trigger
points” at question 4. (Tr. 45; 452-53) The AU also found that Dr. Chung’s
opinion of Winters’s hand limitations would “interfere with the ability to do
even the most basic activities of daily living” and had no support in the record.
(Tr. 46) In addition, the AU found that Dr. Chung’s records did not reflect a
“severely limited range of motion” stemming from Winters’s back and lower
body pain. (Tr. 45) In general, the AU found that Dr. Chung’s records offered
“little by way of supportive treatment records” for his “limited opinions of the
claimant’s functioning.” (Tr. 45)
The AU also found Dr. Chung’s opinion on Winters’s functional
limitations to be inconsistent with the record as a whole—particularly evidence
provided by other examining physicians. She highlighted Dr. Gross’s July 19,
2010 treatment notes, which did not indicate any fibromyalgia trigger points
and found negative results on straight leg raising tests. (Tr. 45; 367) The AU
noted that Dr. Arbit’s December 2010 examination notes attributed Winters’s
Winters argues that the AU did not properly weigh all of the factors in 20 CFR
404.1527. The AU was entitled to find supportability and consistency to be the most
§
persuasive factors. See, e.g., Buckley u. Astrue, No. 9-5058, 2010 WL 3035746, at *9.
10 (D.N.J. Aug. 3, 2010). The AU also took note of other relevant factors. See Tr. 4445 (stating that Dr. Chung began treatment in September 2011); Tr. 46 (noting that
Dr. De Aiwis was a psychiatrist who had treated Winters since December 2010).
9

symptoms primarily to her depression rather than to physical ailments. (Tr. 45;
385) The AU

pointed out that Winters’s annual physical at the Paterson

Counseling Center was inconsistent with Dr. Chung’s assessment of Winters’s
hand limitations. (Tr. 46; 424-27) The AU

also noted the absence of any

records of physical therapy or other like treatment for Winters’s ailments. (Tr.
45)
With respect to Winters’s mental impairments, the AU

similarly relied on

inconsistencies within Dr. De Aiwis’s opinion as well as inconsistencies
between her opinion and the record as a whole. Primarily, the AU

identified

discrepancies between Dr. De Aiwis’s opinion on Winters’s functional
4
limitations and the Global Assessment Function (“GAF”) scores she assigned
Winters. For example, in August 2013, Dr. De Alwis completed a form that
indicated Winters was “markedly limited” in nearly all areas of mental
functioning on the form. (Tr. 46; 398-400) However, she also listed her as
having a current GAF of 55, with 50 being the lowest GAF over the previous
5
year. (Id.; Tr. 395) The AU found the GAF scores inconsistent with Dr. De
Alwis’s assessment of Winters’s limitations. (Tr. 46) In addition, the AU noted
that Dr. De Always had previously assigned Winters a GAF of 60 in December
2010, and that the records failed to reflect deterioration during that period of
treatment. (Tr. 46; 410)

A GAF score is a 0-100 rating scale used by the American Psychiatric
Association to evaluate the functional impairment of a patient. See Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM—IV);
Horst v. Comm’r of Soc. Sec., 2014 WL 56404, at *4 n.3 (3d Cir. Jan. 8, 2014).
4

OAF scores in the 51-60 range “indicate moderate impairment in social or
occupational functioning.” Cherry v. Barn hart, 29 Fed. App’x 898, 900 (3d Cir. 2002);
see also Gullin v. Comm’r of Social Sec., No. 13-1897, 2014 WL 1466488, at *4 n.3
(D.N.J. April 14, 2014). A OAF score of 50 indicates “[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment
in social, occupation, or school functioning (e.g no friends, unable to keep a job).”
Johnson v. Comm’r of Social Sec. Admin., No. 7-3 137, 2008 WL 4372786, at *3 n. 10
(D.N.J. Sept. 22, 2008).
.,

10

The AU

also considered records from other examining mental health

professionals. The AU relied upon a letter from Dr. Corwin, who was Winters’s
longtime psychiatrist. Corwin noted that Winters was taking medications
similar to what he had prescribed her with the exception of Ritalin, and that
Winters had responded well to Ritalin in the past. (Tr. 46; 423) The AU also
took note of the records from an August 2011 examination by Dr. Roy during
6
which Winters stated that “confusion” was her primary mental health
complaint. (Tr. 46; 282) Dr. Roy assessed Winters at a OAF of 60. (Tr. 46; 284)
The AU also highlighted a gap of treatment of nearly one year during Winters’s
period of alleged disability during which she was not under the treatment of a
7
psychiatrist. (Tr. 46)
Winters relies on the Third Circuit’s decision in Brownawell, 554 F.3d
352, to argue that the AU improperly credited the opinions of the state
consultants over the opinions of Drs. Chung and De Aiwis. (P1. Br. 17-20)
However, as explained supra, the AU’s decision did not rest solely, or even
primarily, on the opinions of the non-examining physicians, and the AU

gave

adequate reasons for her weighing of the evidence. The AU’s decision relied
primarily on (1) the lack of support in the record for the opinions of Drs. Chung
and De Aiwis regarding Winters’s functional limitations, and (2) records from a

Dr. Roy examined Winters once in connection with her application for Social
Security DIB. (P1. Br. 14)

6

The AU noted that there was a “time lag of over a year from [Winters’s] onset
date to her initial mental health treatment” which “casts doubt as to whether these
symptoms truly impeded the claimant’s ability to work.” (Tr. 46). This is slightly
inaccurate. Winters was treated by Dr. Corwin until January 2010 (3 months after her
claimed onset date of October 31., 2009). (Tr. 423) There was, however, was a gap in
treatment when Dr. Corwin closed his practice and before Winters began seeing Dr. De
Alwis in December 2010. (Tr. 77; 444) The AU specffically mentioned in her opinion
that Dr. Corwin treated Winters until January 2010 (Tr. 46), so I assume that she
intended to point out the gap in treatment of approximately eleven months between
Dr. Corwin’s treatment and treatment by Dr. De Alwis. I would not remand based
solely on this issue, but on remand, the AU may wish to clarify this matter.
7

11

8
number of other doctors who had the opportunity to examine Winters. The
AU mentioned none of the non-examining state physicians by name, and while
she noted that she did “adopt many of [their opinions],” she similarly
discounted some of their views that she determined were not supported by the
record. See, e.g., Tr. 46 (“Though it is noted that the State agency medical
consultants assessed the claimant to limited walking and standing
record does not include supportive documentation

...

...

the

As such, this portion of

the opinion is provided little weight.”). In addition, the AU’s grant of some
weight to the state consultants was appropriate. See Chandler v. Comm’r of
Social Sec., 667 F.3d 356, 361 (3d Cir. 2011)(”State agent opinions merit
significant consideration.”) (citing SSR 96-6p).

2.

Brownawall error as to “trigger points”

However, in applying the standards of Brownawell, supra, I find that the
AU

inaccurately described the record relating to a factual issue on which her

decision relied. Accordingly, I find that remand is appropriate for clarification
on this aspect of the AU’s decision.
The AU

appears to have overlooked several references in the claimant’s

medical records to multiple bilateral trigger points. “Trigger points” (also
referred to as “tender points” in the record) are used to diagnose and assess
fibromyalgia. In general, the AU found that the record lacked “significant
documentation of tender points over time or other criteria used for evaluation
of [fibromyalgia] under Social Security Ruling 12-2p.” (Tr. 45) The AU stated in
her decision that “[wihile there is evidence of multiple bilateral trigger points on
one occasion, it is not found repeatedly through the record.” (Tr. 45;
367) (emphasis added).

For the same reason, Winters’s argument (made in passing) that the state
consultants’ opinions were based on an incomplete record (P1. Br. 21, 24), is
unavailing.

8

12

The “one occasion” to which the AU

apparently refers is Dr. Rosner’s

March 2011 examination that found twelve bilateral trigger points. (Tr. 45; 367)
There are at least three other findings of trigger points in the record, however.
The AU’s decision does not mention—and the AU may have
overlooked—Dr. Chung’s records from June 2012, which reflect a finding of “18
of 18 fibromyalgia tender points.” (Tr. 412) That omission is highlighted by the
AU’s noting (accurately) that another of Dr. Chung’s records failed to
document trigger points at all. See Tr. 45; 452-53 (“Dr. Chung’s most recent
medical source statement at Exhibit 14F indicated fibromyalgia as the primary
diagnosis at question 2(a) of the form and, inconsistently, provided no listing of
trigger points at question 4....”).
In addition, the AU’s decision does not address records from September
30, 2011 and November 15, 2011. These reflect multiple bilateral tender
points—five and eight, respectively. (Tr. 308; 305)9
As discussed supra, the AU accurately and very ably highlighted a
number of deficiencies in the medical records. Those deficiencies, she
permissibly found, undermined Dr. Chung’s opinion regarding Winters’s
functional limitations due to fibromyalgia (and other impairments). For
example, in certain places, the record seems to reflect an absence of
fibromyalgia trigger points where one would expect to see them. See, e.g., Tr.
367 (Dr. Gross’s exam finding Winters’s musculoskeletal system “normal” and
no tenderness in the spine), On remand, the AU might or might not reach the
same ultimate conclusion. But her decision should leave no uncertainty that

Pursuant to SSR l2-2p, one of the criteria AUJs use to assess whether a
claimant has a medically determinable impairment (MDI) of fibromyalgia, is the
presence of “[alt least 11 positive tender points on physical examination.” See SSR 122p. Having already found that Winters has an MDI of fibromyalgia based on her
physicians’ diagnoses (Tr. 41), the AU appears to use the criteria in SSR l2-2p to
assess the severity of the claimant’s fibromyalgia. Reliance on SSR 12-2p may explain
why the AU failed to note the September and November 2011 records, which counted
fewer than eleven trigger points. On remand, the AU should clarilr what weight, if
any, she assigns to these records.
13

she has considered all of the evidence in the record. I therefore remand the
case for clarification on this issue.
AU’s assessment of Winters’s credibility

3.

Winters argues that the AU

failed to properly assess her credibility in

violation of 20 CFR § 404.1527 and SSR 96-’7p. (P1. Br. 25-27) Again, I do not
find any errors in the AU’s approach or reasoning. However, because the AU’s
assessment of Winters’s credibility was necessarily intertwined with her
treatment of the factual record, on remand, the AU

should similarly clarify her

assessment of Winters’s credibility in light of the factual issue discussed in the
immediately preceding Section III.A.2, supra.
The AU had the opportunity to observe Winters at the hearing, and was
well-positioned to assess her credibility. See Coleman v. Comm’r of Social Sec.,
494 Fed. App’x 252, 254 (3d Cir. 2012)(”We ‘ordinarily defer to an AU’s
credibility determination because he or she has the opportunity at a hearing to
assess a witness’s demeanor.”’) (quoting Reefer v. Bamhart, 326 F.3d 376, 380
(3d Cir. 2003)). 20 CFR § 404.1529(b) makes clear that the claimant’s
statements about symptoms are not enough to establish disability. Allegations
of subjective symptoms must be supported by objective medical evidence. SSR
96-’7p.
Of course, an ALT’s impression of the claimant does not stand alone.
Under SSR 96—’7p, a credibility determination must be based on “the entire
case record.” The regulation sets forth a two-step process for evaluating a
claimant’s statements about her own impairments. Id. First, the AU

must

“consider whether there is an underlying medically determinable physical or
mental impairment(s)

...

that could reasonably be expected to produce the

individual’s pain or other symptoms.” Id. Second, the AU “must evaluate the
intensity, persistence, and limiting effects of the individual’s symptoms to
determine the extent to which the symptoms limit the individual’s ability to do
basic work activities.” Id.

14

At this second step, if the AU finds that the claimant’s symptoms
suggest a greater restriction of function than can be demonstrated by objective
evidence alone, she must also consider such factors as:
(1) The individual’s daily activities; (2) The location, duration,
frequency, and intensity of the individual’s pain or other
symptoms; (3) Factors that precipitate and aggravate the
symptoms; (4) The type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) Treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms (e.g., lying flat
on his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) Any other factors concerning the
individual’s functional limitations and restrictions due to pain or
other symptoms.
SSR 96—’7p (citing 20 CFR

°
1
§ 404.1529(c)).

The AU’s credibility determination “must contain specific reasons for the
finding of credibility, supported by the evidence in the case record.” SSR Yô—
p;
7
see also 20 CFR

§ 404.1529(b). The AU must indicate which evidence she

relies on and which she rejects. Schaudeck v. Comm’r of Soc. Sec., 181 F.3d
429, 433 (3d Cir. 1999).
The AU

explicitly cited the two-step process she applied under SSR 96-

‘7p. (Tr. 43) Under this rubric, she found that “the claimant’s medically
determinable impairments could reasonably be expected to cause some of the
alleged symptoms.” However she found the claimant’s statements about the
“intensity, persistence and limiting effects of these symptoms
credible.” (Tr. 44) While the AU

...

not entirely

credited Winters as suffering from multiple

impairments, in her assessment, a lack of documentation “undermine[d]
[Winters’s] allegations of functional limitations” caused by her impairments.
Winters argues that the AU “did not give appropriate consideration to the
subjects she is required to explore under SSR 96-’7p.” (P1. Br. 27) I disagree. The AUJ’s
decision focused primarily on the second factor, but she also took note of Winters’s
daily activities (Tr. 44, 46), medication (Id.), and the fact that the record contained no
evidence of alternative treatment such as physical therapy (Tr. 45).
10

15

(Tr. at 45) On the whole, the AU

found the medical records to be inconsistent

with Winters’s testimony. See SSR 96-7p (“One strong indicia of the credibility
of an individual’s statements is their consistency, both internally and with
other information in the case record.”); Bailey v. Comm’r of Soc. Sec., 354 Fed.
App’x 613, 618 (3d Cir. 2009)(ALJ properly discounted claimant’s testimony
where there were inconsistencies between the testimony and the medical
evidence in the record).
Specifically, the AU found that conclusions in the medical records that
tended to support Winters’s testimony were undermined by (1) a lack of
support, and (2) internal inconsistencies within the records themselves. See
Section III.A. 1, supra. In supporting her decision, the AU

sifted through

Winters’s medical records and her own testimony.
With respect to Winters’s physical limitations, the AU found that the
records were internally inconsistent and that they lacked specific factual
support for conclusions that would corroborate Winters’s testimony regarding
her level of pain and related limitations. See Section III.A. 1, supra; Tr. 44-47.
The AU

similarly found the mental health record evidence inconsistent with

Winters’s testimony about her functional limitations based on her mental
impairments. Id.
The AU also identified an inconsistency in Winters’s own testimony
regarding the reason she stopped working in 2009. Winters said she left her
work because she had a “breakdown” but then also said that she was “laid off’
from that job. (Tr. 44)” SSR 96-’7p instructs the AU

to consider

inconsistencies within the claimant’s testimony when assessing credibility. See
SSR 96-7p; Craig v. Comm’r of Soc. Sec., No. 13-4454, 2014 WL 6667216, at
To be sure, Winters’s testimony was not entirely clear on the reason or reasons
her employment ended. See Tr. 55-56; 60-61. The AU was entitled to consider such
inconsistencies, however, as bearing on credibility.
11

16

*14 (D.N.J. Nov. 21, 2014)(inconsistencies in claimant’s testimony, including
about reason for leaving previous job, contributed to a lack of credibility).
For the most part, I find the AU’s credibility assessment sufficient. I find
no errors of law or procedure in her analysis. But credibility cannot be fully
assessed except in the context of the full record, and I have remanded because
the full record may not have been considered. On remand, the AU should
address Winters’s credibility in light of the factual issue discussed in Section
III.A.2, supra. Again, I do not suggest that the outcome must be different—only
that the AU’s decision should make clear that she has considered the entire
record in this respect as well.
B.

AU’s step five determination

Winters asserts that the AU’s determination that there is alternative
work in the economy that she can perform was based on a flawed hypothetical
that did not capture all of her limitations. Therefore, Winters argues that the
Commissioner did not meet her burden at step five. (P1. Br. 27-30) I do not
agree and instead find that the AU’s step five determination was supported by
substantial evidence.
The hypothetical the AU posed to the vocational expert was as follows:
Claimant could do light work, that is, she could occasionally lift 20
pounds, frequently 10 pounds. Pushing and pulling limited to the
same weight restrictions. That she should not—that she cannot
climb ladders, ropes, scaffolds. That she can occasionally climb
ramps, stairs, balance, stoop, kneel, crouch, crawl. That she
should avoid hazards such as dangerous machinery and heights.
Avoid—no temperature extremes. That she can frequently hand
bilaterally. That she can—that she’s limited to simple, routine work
with no more than—with no public contact and occasional co
worker and supervisory contact.
(Tr. at 81) Based on this hypothetical, the vocational expert stated that Winters
could not perform her past work but could perform other work in the regional
economy. (Tr. at 82) The vocational expert provided examples of jobs Winters
could perform—ticketer, inspector and hand packager, and decal applier. (Id.)
17

In Winters’s view, the hypothetical does not accurately capture all of her
limitations that are established by the record. See Rutherford v. Barnhard, 399
F.3d 546, 553 (3d Cir. 2005)(”[T]he AU must accurately convey to the
[vocational experti all of the claimant’s credibly established limitations.”).
Specifically, Winters notes that the AU’s decision found that “[w]ith regard to
concentration, persistence or pace, [Wintersi has moderate difficulties.” (Tr. at
42) Winters argues that these limitations should have been conveyed to the
vocational expert as part of the hypothetical.
Winters rests her argument primarily on the Third Circuit’s decision in
Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004). In Ramirez, the Court held

that a hypothetical that limited the claimant to (among other restrictions)
“simple one or two-step tasks” was not sufficient to account for the AU’s
observation that the claimant “often suffered from deficiencies in concentration,
persistence, or pace.” 372 F.3d 546 at 554 (emphasis in original). The Court
explained that the limitation to simple one or two-step tasks was not sufficient
to account for the claimant’s mental limitations, particularly for deficiencies in
pace, which could restrict the claimant from jobs with production quotas. Id.
Had the AU conveyed this limitation, the Court reasoned, the vocational
expert’s answer about available work may have been different. Id.
Ramirez is highly distinguishable. First, in Ramirez, it was significant to
the Court that the claimant “often” experienced the relevant limitations. Id. at
555. This was explicitly acknowledged by the AU in that case and was obvious
to the Court from the record. Id. The Court explained:
Of course, there may be a valid explanation for [omitting a specific
limitation regarding pacel from the AU’s hypothetical. For
example, the AU may have concluded that the deficiency in pace
was so minimal or negligible that, even though Ramirez “often”
suffered from this deficiency, it would not limit her ability to
perform simple tasks under a production quota. The record,
however, would seem to suggest otherwise.
Id.

18

In contrast, here the AU

found that Winters has only “moderate” or

“some” limitations in concentration, persistence, or pace, and the record does
not readily suggest otherwise. (Tr. at 42) In short, the hypothetical reflected
those factual findings. Second, Winters’s case included additional limitations to
minimize distractions, limitations that were not present in Ramirez.
Specifically, the AU found that Winters was suited only for positions with no
public contact and only occasional contact with co-workers and supervisors.
(Tr. at 81) Ramirez, by contrast, found that the applicant’s mental impairments
required only limitations on travel and phone privileges. 372 F.3d 546 at 554.
Third, the AU

limited Winters to “simple, routine work,” a broader range than

Ramirez’s “simple one or two-step tasks.” (Tr. at 42)
Following Ramirez, courts including the Third Circuit have found
hypotheticals like the one used in this case appropriate under similar
circumstances. See McDonald v. Astrue, 293 Fed. App’x 941, 946 & n.10 (3d
Cir. 2008)(hypothetical that included limitation to “simple, routine tasks” was
sufficient to account for moderate restrictions in concentration, persistence,
and pace because unlike in Ramirez, the claimant did not “often” suffer from
these deficiencies); Menkes v. Astrue, 262 Fed. App’x 410, 412 (3d Cir.
2008)(AUJ’s hypothetical limiting claimant to “simple routine tasks” accounted
for moderate limitations in concentration, persistence, and pace); Seabon v.
Comm’r of Social Sec., No. 10-2268, 2011 WL3425508, at*9 (D.N.J. Aug. 4,
2011) (distinguishing Ramirez and finding hypothetical based on “simple,
unskilled jobs involving one or two steps” with low stress, limited proximity to
others, and available breaks, sufficient to account for moderate limitations in
concentration, persistence, and pace); Palisay v. Comm’r of Social Sec., No. 114857, 2012 WL 3201428, at *17 (D.N.J. Aug. 2, 2012)(hypothetical restricting
claimant to “settings with low stress and little to no public contact
encompass[ed] Plaintiff’s moderate limitations in social functioning and
concentration, persistence, and pace”); Whitford v. Comm’r of Social Sec., No.
13-5469, 2014 WU 3514990, at *4, 8 (D.N.J. July 15, 2014)(hypothetical based

19

on jobs that are “unskilled, simple” and “low stress” accounted for “moderate
limitations in the activities of daily living, social interactions, and
concentration, persistence, and pace”).
Accordingly, I am satisfied that the hypothetical in this case
corresponded to the evidence, and that it was relevant and sufficient. It follows
that the AU’s step five determination was supported by substantial evidence.

IV.

CONCLUSION
For the foregoing reasons, the AU’s decision is REMANDED for further

proceedings consistent with this Opinion. An appropriate order accompanies
this Opinion.
Dated: December 9, 2015

KEVIN MCNULTY
United States District Ju

20