DELOS SANTOS AVILLA v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge Kevin McNulty on 5/18/2016. (seb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MARIA DELOS SANTOS AVILLA,
Civ. No. 15—2857 (KM)
Plaintiff,
v.

OPINION

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
The plaintiff, Maria Delos Santos Avilla, action pursuant to 42 U.S.C.

§

405(g) to review a final decision of the Commissioner of Social Security
(“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C.

§ 40 1—434, and

Supplemental Security Income (“SSI”) under Title XVI of the Social Security
Act, 42 U.S.C.

§ 1600—1637. For the reasons set forth below, the decision of

the Administrative Law Judge (“AU”) is AFFIRMED.
PROCEDURAL BACKGROUND
Plaintiff seeks to reverse an AU’s finding that she was not disabled from
October 5, 2008, the alleged onset date, through February 7, 2014. She applied
for DIB on May 2, 2012, and for SSI on April 24, 2012. (R. 20)’ Her claims were
denied initially and then on reconsideration on November 15, 2012. On

1

Pages of the administrative record (ECF no. 8) are cited as “R.
1

.“

November 13, 2013, AU

Richard West conducted an administrative hearing, at

which Plaintiff testified and was represented by counsel. (R. 32—49)
On January 6, 2014, AU West issued his decision denying Plaintiff’s
application. (R. 20—27). The Appeals Council denied Jimenez’s request for
review (R. 1—9), rendering the AU’s decision the final decision of the
Commissioner.
II.

STANDARD OF REVIEW AND REQUIRED FIVE STEP ANALYSIS
To qualify for Title II DIB benefits, a claimant must meet the insured

§ 423(c). To be eligible for SSI benefits, a
claimant must meet the income and resource limitations of 42 U.S.C. § 1382.
status requirements of 42 U.S.C.

To qualify for either, 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), 1382c(a)(3)(A); see, e.g.,

Dia.z v. Comm’r of

Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009).
A. Standard of Review
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. 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 marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
2

preponderance of the evidence.” Id. (internal quotation marks and citation
omitted).
[ljn evaluating whether substantial evidence supports the AU’s
leniency should be shown in establishing the claimant’s
findings
the Secretary’s responsibility to rebut it should
disability, and
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, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.

§ 405(g)); Zimsak, 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), 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) (not precedential).
Outright reversal with an award of benefits is appropriate only when a
fully developed administrative record contains substantial evidence that the
claimant is disabled and entitled to benefits. Podedwomy, 745 F.2d at 221—
222; Morales v. Apfel, 225 F’.3d 310, 320 (3d Cir. 2000).
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 AU’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 F. App’x 652,
658 (3d Cir. 2004) (“We will not accept the AU’s conclusion that Leech was not
disabled during the relevant period, where his decision contains significant
contradictions and is therefore unreliable.”) (not precedential). It is also proper
3

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. Aclomo v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation
marks omitted).
B. The AU’s Analysis
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 regulations.
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), 4 16.920(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), 4 16.920(c). If the claimant has a

severe impairment, move to step three.
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. (Those Part A criteria are purposely set at a high level,
to identify clear cases of disability without further analysis.) If so, the claimant
is automatically eligible to receive benefits; if not, move to step four. Id.

§

404.1520(d), 4 16.920(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), 416.920(g); see Poulos v. Comm’rof Soc.
4

Sec., 474 F.3d 88, 91—92 (3d Cir. 2007). If so, benefits will be denied; if not,
they will be awarded.
AU West properly followed that process, finding Plaintiff non-disabled at
step four. His conclusions may be summarized as follows.
At step one, the AU

determined that Plaintiff had met the insured status

requirements through December 31, 2013, and had not engaged in substantial
gainful activity since October 5, 2008. (R.22 ¶j 1, 2) At step two, the AU

found

that Plaintiff had the following severe impairments: “depression and anxiety (20
CFR 404.1520(c) and 416.920(c))” (R. 22
At step three, the AU

¶

3)

determined that Plaintiff’s impairment or

combinations of impairments did not meet or medically equal the severity of
one of the listed impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A. (R. 23

¶1

4)
The AU defined Plaintiff’s residual functional capacity (RFC) as follows:
[T]he claimant has the residual functional capacity to
5.
perform a full range of work at all exertional levels, but with the
following nonexertional limitations: the claimant can understand,
remember and carry out simple instructions, occasionally interact
with the general public and occasionally travel to unfamiliar
places.
...

(R. 24

¶

5)

At step four, the AU found that Plaintiff was capable of performing past
relevant work as a cclaborer/house and office cleaner (381.687-014)(SVP 2)” as
actually and generally performed. (R. 26

¶

6)

Based on that step 4 finding, the AU found that Plaintiff had not been
under a disability from October 5, 2008, through the decision date of February
7, 2014. (R. 26

¶

7)

The AU therefore did not proceed to step five.

5

III.

CLAIMANT’S TESTIMONY AND MEDICAL EVIDENCE
I summarize some of the more important testimony and medical

evidence.
A.

Testimony

Plaintiff moved from Puerto Rico to the mainland United States on March
31, 2012. (R.

37)2

In April—May 2012, Plaintiff submitted an application for

benefits that contained a disability report claiming depression, anxiety, and
high blood pressure. (R. 196)
Plaintiff submitted a work history in which she said she cleaned offices
and also was self-employed as a housekeeper. A typical workday involved four
hours of walking and no more than one hour of standing. She would lift not
more than ten pounds. (R. 2 18—19)
Plaintiff submitted function reports on May 8, 2012, and September 17,
2012. She stated that in a typical day she woke up, showered, made her bed,
and prepared breakfast. When Plaintiff felt well, she would help her
granddaughter get ready for school, help prepare meals, wash dishes, and do
some cleaning. (R. 209—12) Plaintiff stated that she went out 2—3 times per
week, and would visit her uncle in New York. She shopped with her daughter
and could count change. She does not like talking to people, but talked to
family members twice per week and attended church nearly every Sunday. (R.
2 12—13, 24 1—42)
At the administrative hearing, Plaintiff testified that her old cleaning job
had required her to lift buckets of water estimated to weigh 20 to 40 pounds.
(R. 39) She said she stopped working in 2008 because of back pain, gastritis,
headaches, nausea, panic attacks, and depression, which she had suffered for
a long time. (R. 39) She said she suffers from nerves and panic attacks, which
occur 15 times per month. Her depression, she testified, causes her to lie in

2

Plaintiff was born in the Dominican Republic and is a naturalized U.S. citizen.

(R. 37—38)
6

bed and cry daily. (R. 4 1—44) She was seeing a psychiatrist every month or two.
She :eceives medication, but nevertheless has the panic attacks and the
depression “[a] little.” When she does have a panic attack, it can last for hours.
(R. 45).
Plaintiff also claimed at the hearing that she had suffered from back pain
since a car accident at the age of 28 (35 years ago). (R. 44) Her counsel
acknowledged that this was not “documented” and that it was “a little late” to
start claiming it, and referred to a parallel application for retirement benefits.
(R. 45) Counsel acknowledged that the claimed mental impairment was “the
main argument” and the main impediment to work. (R. 48)
B.

Treatment and Evaluation records
1.

Mental impairments

On June 4, 2012, Plaintiff, complaining of depression and anxiety,
underwent a biopsychosocial evaluation at Mount Carmel Guild Behavioral
Health System. (R. 275). Their mental status assessment was that Plaintiff was
anxious with below average intellectual functioning, but fully oriented with an
intact memory, cooperative attitude, unremarkable behavior, normal speech,
intact thought processes, normal affect, fair judgment, and fair insight (Tr.
275-81).
On June 19, 2012, state agency psychological consultant Sharon
Flaherty, Ph.D., conducted a psychiatric review technique assessment. Flaherty
found that Plaintiff had mild daily living activity restrictions, moderate social
functioning difficulties, moderate concentration, persistence, or pace
difficulties, and no extended-duration decompensation episodes (R. 60).
Performing an RFC assessment, Dr. Flaherty concluded that Plaintiff could
understand, remember, and follow short! simple instructions; could learn and
perfDrm simple, routine tasks; and could interact minimally (R. 6 1—63). Ellen
Gara, Psy.D., reviewed Plaintiff’s file on reconsideration and agreed with Dr.
Flab. erty’s conclusions. (R. 86).
7

On August 21, 2012, Plaintiff returned to Mount Carmel for a psychiatric
evaluation. She complained of anxiety and panic attacks that increased
following her brother’s suicide (R. 273). Dr. Hammond concluded that Plaintiff’s
mood was depressed, but her thought processes were coherent. She displayed
no hallucinations or suicidal/homicidal ideations, and her impulse control was
adequate (R. 274).
On January 18, 2013, Plaintiff returned to Mt. Carmel and reported
feelihg better (Tr. 292). Dr. Hammond reported normal speech, goal-directed
thought processes, clear sensorium, intact concentration, fair insight, fair
judgment, and good impulse control (R. 292).
On March 19, 2013, Plaintiff returned to Mt. Carmel and reported being
very depressed and anxious, but Dr. Hammond found that Plaintiff’s anxiety
and depression had lessened. (R. 290). Dr. Hammond again found normal
speech, goal-directed thought processes, clear sensorium, intact concentration,
fair insight, fair judgment, and good impulse control (Tr. 291).
On May 27, 2013, Plaintiff had a follow-up appointment with Dr.
Hammond. Dr. Hammond’s exam again found Plaintiff depressed, but with
normal speech, goal-directed thought processes, clear sensorium, intact
concentration, fair insight, fair judgment, and good impulse control (R. 290).
On May 31, 2013, Ernesto L. Perdomo, Ph.D., conducted a consultative
psychological evaluation for the state disability agency. Plaintiff complained of
“nervous problems” and panic attacks, particularly in crowds and confined
areas. She expressed feelings of depression, but had no history of psychiatric
hospitalization or outpatient psychiatric treatment (R. 282). Her medications
included amitriptyline and aiprazolam (apparently sent to her from the
Dominican Republic). (R. 292) Dr. Perdomo’s evaluation was that Plaintiff had a
depressed/anxious mood and low intelligence, but was fully oriented with
organized and focused thought processes, coherent and relevant speech,
remarkable, full, and appropriate affect, and fair short-term memory, long-term
memory, and concentration. (R. 283-84)
8

On August 26, 2013. Dr. Hammond found that Plaintiff was “mildly
depressed” with normal speech, goal-directed thought processes, clear
sensorium, intact concentration, fair insight, fair judgment, and good impulse
control (R. 289).
2.

Physical impairments

On May 21, 2012, Rambhai C. Patel, M.D., conducted a physical
consultative exam for the state disability agency. Plaintiff complained of
hypertension, chest tightness, and shortness of breath, as well pain from her
neck to her lower back without radiation (R. 26 1-62). Dr. Patel’s exam revealed
that Plaintiff walked with a normal gait and at a reasonable pace; normal
breath sounds; normal heart; no edema of the legs; normal reflexes and
sensation; and no tenderness of the spine (R. 262—64) Her shoulders, elbows,
wrists, knees, hips, ankles, and spine had a normal range of motion. (R. 265).
Her DKG was normal (R. 262) Plaintiff could squat and walk on her toes and
heels. (R. 264). Dr. Patel concluded that Plaintiff could perform fine and gross
movements in both hands, and there were no gross sensory or motor deficits
(R. 262).
On June 19, 2012, state agency medical consultant Jyothsna Shastry,
M.D., found that Plaintiff did not have any severe physical impairments (R. 59).
Examination revealed that her blood pressure was controlled, and that she
suffered from no associated symptoms. (R. 59). David Terstein, M.D., reviewed
Plaintiff’s file on reconsideration and agreed with Dr. Shastry’s conclusions. (R.
82).
On July 2, 2012, Plaintiff saw Victoria Munoz, N.P., complaining of lower
back pain. Nurse Munoz found normal range of motion of all joints and no
edema (Tr. 267).
On August 2, 2012, Plaintiff saw Mazie Trusty, N.P. Nurse Trusty’s exam
revealed that extension of the spine was limited, but with full flexion and
lateral range of motion, without pain or restriction (R. 269).
9

IV.

ANALYSIS
There is virtually no basis in the medical evidence for the impairments

claimed. All treatment occurred only after the disability applications were filed.
Concerning mental impairments, Plaintiff saw a professional every few months
and -eceived medication. Both the treating and consulting professionals
diagnosed Plaintiff with mild or moderate depression and anxiety. No
professional believed there should be more than a moderate restriction on
Plaintiff’s activities. No medical professional, whether treating or consulting,
found any serious physical impairment.
A.

Step 3 finding

The step 3 inquiry is whether the claimant’s impairments, alone or in
combination, equal in severity an impairment listed in 20 C.F.R. Pt. 404,
subpt. P, app. 1. Step 3 is designed to short-circuit inquiry where an
impEirment is so clearly disabling that no further analysis should be
necessary. As to this issue, the claimant bears the burden. The AU

found that

the claimant’s depression and anxiety were severe, but not so severe as to
satisfy Step 3.
As to mental impairments, Appendix 1 contains three lists of criteria,
known as Paragraphs A, B, and C. See 20 C.F.R. Pt. 404, Subpt. P., App. 1,

§

12.04, 12.06. The claimant must either (1) satisfy paragraphs A and B; or (2)
satisfy paragraph C.

12.04 Affective Disorders: Characterized by a disturbance of mood,
accompanied by a full or partial manic or depressive syndrome. Mood refers to a
prolonged emotion that colors the whole psychic life; it generally involves either
depression or elation.
The required level of severity for these disorders is met when the requirements
in both A and B are satisfied, or when the requirements in C are satisfied.
A. Medically documented persistence, either continuous or intermittent, of one
of the following:
1. Depressive syndrome characterized by at least four of the following:
3

a. Anhedonia or pervasive loss of interest in almost all activites; or
10

b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractability; or
g. Involvement in activities that have a high probability of painful consequences
which are not recognized; or
h. Hallucinations, delusions or paranoid thinking;
or
3. Bipolar syndrome with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes (and currently
characterized by either or both syndromes);
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
OR
C. Medically documented history of a chronic affective disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to do basic
work activities, with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
11

As to the first prong, the AU focused on Paragraph B. Paragraph B
requires that a mental impairment result in at least two of the following:
marked restriction of activities of daily living; marked difficulties in maintaining
social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended
duration. A marked limitation is one that is more than moderate, but less than
extreme. Repeated and extended episodes of decompensation require at least
three episodes within one year, or an average of once every four months, each
lasting for at least two weeks.
The AU

found only mild restriction of activities of daily living. He pointed

to the function report, and the reported activities of, e.g., showering, making
meals, and going to church. (R. 23

¶

4) He found moderate difficulties as to

concentration, persistence, or pace. The AU

acknowledged Plaintiff’s reported

anxiety, susceptibility to stress, tendency to forget instructions, and inability to
adapt well to changes in routine. (Id.) No episodes of decompensation were
reported. I note also that there is no history of psychiatric hospitalization or
outpatient treatment, and that two evaluating consultants found only mild
daily living restriction. The AU’s finding that paragraph B was not satisfied,
then, was supported by substantial evidence of record, which the AU
4
considered and cited. Under the standard of review, no more is required.

2. A residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the environment would
be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an
arrangement.
Because the first alternative requires a positive fmding as to both paragraphs
A & B, it was not necessary for the AU to consider the “A” criteria, and he did not.
Plaintiff’s counsel takes umbrage at this, but points to no legal error.
12

As for the second prong, the AU

found that the paragraph C criteria

were not met, without further analysis. While more detail would be desirable, I
will sustain that finding because there is no evidence in this record from which
the Plaintiff could have satisfied her burden. The medical evidence, and even
Plaintiff’s own subjective testimony, do not establish repeated, extended
episodes of decompensation; such marginal adjustment that even a minimal
change would result in decompensation; or a history of one or more years?
inability to function outside a highly supportive living arrangement. See
Paragraph C, quoted in full at n.3, supra.
All of the medical evidence points to mild or moderate depression and
panz attacks, controlled by medication. The evaluating experts all found
mer’:al and emotional functioning on a level consistent with coherent thought,
concentration, and social functioning. Plaintiff claimed to remain home most of
the time, but all of the objective medical evidence is against any conclusion
5
that Plaintiff is marginal or unable to function outside the home. Evidence of
her church attendance, going out 2—3 times per week, visits to her uncle in
New York, and ability to relate to her family, also undercut her self-reported
symptoms.
B.

RFC

An RFC need reflect only the claimant’s “credibly established limitations”;
the AU is not required to accept all claimed limitations for purposes of
assessing the claimant’s RFC. Rutherford v. Bamhart, 399 F. 3d 546, 554 (3d
Cir. 2005). The RFC here was firmly based on the limitations imposed by her
anxiety and depression. With due respect to her counsel’s argument, the RFC
was not required to reflect a whole range of physical limitations, particularly
thos that were not even claimed in her application.

I note in passing that Plaintiff applied for benefits just weeks after she had
moved from Puerto Rico to New Jersey, where she seemingly had never lived before.
That, and the fact she was not working, may in part account for any lack of social
connections outside of her family circle.
13

The AU’s findings of mental impairments of depression and anxiety, and
his finding of no severe physical impairment, were supported by substantial
evidence. That evidence, summarized above, Sections JII.A & B, would scarcely
admit of any other conclusion.
Based on those findings, the AU was constrained to make an RFC
finding that contained no exertional limitations. The lack of exertional
limitations is based on the lack of any significant physical impairment. The
Plaintiff claimed high blood pressure, but this was not accompanied by any
evidence that it manifested itself in limiting symptoms. At the evidentiary
hearing, Plaintiff’s counsel disclaimed any reliance on a back impairment,
which allegedly occurred when she was 28 and had not prevented her from
working for decades. The alleged back problem had not been claimed in the
appFcation, it had not been documented, and “so at this state of the game it
[was] a little late to start,” admitted counsel. (R. 46) Plaintiff claims diagnoses
of scoliosis and/or degenerative disc disease. Every examining and treating
medical professional, however, agreed that there was no significant physical
limitation; at most they found some limitation of extension. There were no
substantial limits on ability to perform basic physical activities: walking,
moving extremities, fine and gross manipulation with the hands, and so on.
See Section III.B, supra.
The RFC did, however, contain nonexertional limitations: “the claimant
can understand, remember and carry out simple instructions, occasionally
interact with the general public and occasionally travel to unfamiliar places.”
(R. 24

¶

5) These stemmed from the impairments of anxiety and depression, as

found by the AU. The medical evidence does not even really go even that far.
Dr. Hammons, who treated her at Mt. Carmel, assessed her as “mildly
depressed.” (R. 289) At Mt. Carmel, it was found that she had below average
intellectual functioning, intact memory, a cooperative attitude, intact and goal
directed thought processes, normal affect, fair judgment, adequate to good
impulse control, and fair insight. (R. 289—92) The evaluating professionals
14

essentially agreed. See Section III.A, supra. Dr. Flaherty’s conclusion—that
6
Plaintiff could understand, remember, and follow short/simple instructions;
could learn and perform simple, routine tasks; and could interact minimally—
is consonant with all of the medical evidence. (R. 6 1—63).
The only evidence of more severe impairment consisted of Plaintiff’s
testimony. A claimant’s subjective complaints merit careful consideration, but
the AU is not required to accept them uncritically. Chandler v. Comm’r of Soc.
Sec., 667 F.3d 356, 363 (3d Cir. 2011) (citing 20 C.F.R.

§ 4 16.929). Rather, the

s required to assess whether and to what degree such complaints are
credible. See SSR 96-’7p, 1996 WL 374186, at *4•

AU

Social Security Regulation 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.
Such credibility determinations are reserved for the AU:
[W]hile an AU must consider a claimants subjective complaints, an AU
has discretion to evaluate the credibility of a claimant and arrive at an
independent judgment in light of medical findings and other evidence
regarding the true extent of the pain alleged by the claimant. Subjective
complaints cannot alone establish disability.

The evaluators assigned GAF scores in the mid-50’s.A GAF (Global Assessment
of Functioning) result of 51—60 indicates the following: Moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with peers or co
workers).
6

15

Gant v. Comm’r Soc. Sec., 205 F. App’x 65, 67 (3d Cir. 2006) (internal
quotations and citations omitted). See also 20 C.F.R.

§ 404.1529(c); Malloy v.

Comrn’r of Soc. Sec., 306 Fed. App’x 761, 765 (3d Cir. 2009) (citing
Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); Davis v. Com’r of
Soc. Sec., 240 F. App’x 957, 960 (3d Cir. 2007).
The AU

may reject subjective complaints, for example, if they are not

credible in light of the other evidence of record. Schaudeck v. Comm’r of Soc.
Sec., 181 F.3d 429, 433 (3d Cir. 1999). The AU

is called upon to evaluate the

intensity, persistence, and limiting effects of a claimant’s symptoms to
determine the extent to which they limit his ability to perform basic work
activities. See 20 C.F.R.
evidence

...

§ 404.1529(c) (2). As to that issue, “[o]bjective medical

is a useful indicator.” Id. The AU

may also examine factors that

precipitate or aggravate the symptoms, medications and treatments, and daily
living activities. 20 C.F.R.

§ 1529(c)(3).

The AU’s credibility determination “must contain specific reasons for the
finding on credibility, supported by the evidence in the case record.” SSR 967P; see also 20 C.F.R.
that the AU

§ 404.1529(b), 4 16.929(b). What is required overall is

give the claimant’s testimony “serious consideration,” state his

reasons for discounting it, and make “specific findings.” Rowan v. Barnhart, 67
F. App’x 725, 729 (3d Cir. 2003). Where that has been done, a reviewing court
will defer to the AU’s credibility determinations.
Here, the AU

did not wholly reject Plaintiff’s testimony, but weighed it in

the context of all the medical evidence in arriving at his finding of RFC. No
medical evidence, for example, was consistent with Plaintiff’s claim that she
had some fifteen disabling panic attacks per month, and cried daily in bed. The
AU also considered Plaintiff’s claims in light of daily activities such as church
attendance, visiting relatives, and so forth. Her earlier function reports, too,
merited consideration, as the Plaintiff there portrayed her condition as far less
serious than she did at the hearing.
16

Such weighing is what the substantial evidence standard requires the
AU to do. See Adomo v. Shalala, 40 F.3d 43,48 (3d Cir. 1994).

C.

Step 4

-

Ability to Perform Past Relevant Work

At step four, the AU will find the claimant not disabled if she is able to
perform past relevant work. As to this issue, the claimant bears the burden of
showing she is not able to do so. Adomo u. Shalala, 40 F.3d 43, 46 (3d Cir.
1994). Here, the past relevant work was as a laborer/house and office cleaner,
which required lifting of perhaps 30 pounds. (R. 26
7

¶

6)

The AU relied on the RFC and determined that nothing about Plaintiff’s
limitations was inconsistent with work as a house or office cleaner. And indeed
it makes sense that the position could be performed by someone able to
understand, remember, and follow short! simple instructions; learn and
perform simple, routine tasks; and interact minimally. Here, Plaintiff makes
much of her supposed physical inability to perform the job, but no significant
physical limitations were found by the AU.
The AU’s step four determination was supported by substantial
evidence.
V. CONCLUSION
For the reasons expressed above, the AU’s decision is AFFIRMED.

Dated: May 18, 2016

EVIN MCNULTY
United States District Judge

This hearing testimony was inconsistent with the work history initially
submitted by Plaintiff, in which she said she cleaned offices and also was selfemployed as a housekeeper, jobs which involved four hours of walking, no more than
one hour of standing, and lifting of not more than ten pounds. (R. 2 18—19)

17