WRIGHT v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Claire C. Cecchi on 9/11/2017. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CINDY WRIGHT,

Civil Action No.: 2:1 6-cv-00769 (CCC)

Plaintiff,
V.

OPINION

COMMISSIONER Of SOCIAL SECURITY,
Defendant.
CECCHI, District Judge.
I.

INTRODUCTION

Before the Court is Plaintiff Cindy Wright’s (“Plaintiff’) appeal seeking review of a final
determination by the Commissioner of the Social Security Administration (“Commissioner”)
denying her application for disability benefits (“DIB”) and supplemental social security income
(“SSI”) under

§ 216(1),

223(d), and 1614(a)(3)(A) of the Social Security Act (“SSA”). The

issue to be decided is whether the Commissioner’s denial of benefits is supported by substantial
evidence, for the reasons set forth below, the decision of the Administrative Law Judge (“AU”)
is affirmed in part, vacated in part, and the matter is remanded for further proceedings consistent
with this Opinion.
II.

BACKGROUND
A.

Procedural Background

Plaintiff applied for DIB on June 7, 2012, and for SSI on December 26, 2012, alleging
disability as of March 24, 2012. Tn

at 46. The applications were denied initially and upon

reconsideration. Id. Plaintiff requested a hearing before an AU to review the application de
“Tr.” refers to the certified record of the administrative proceedings. ECf No. 7.

novo. Id. at 147-48. On May 27, 2014, a hearing was held before AU Barbara Dunn. Id. at 46-

5$.

AU Dunn issued a decision on August 22, 2014 finding Plaintiff was not disabled as

defined by the SSA. Id. at 58. On December 10, 2015, the Appeals Council denied Plaintiffs
request for review of AU Dunn’s decision. Id. at 1. Plaintiff instituted this action on May 25,
2016. ECF No. 1.
B.

Factual Background

Plaintiff was born on April 20, 1981. Tr. at 56. She has an 8th grade education and has
previously worked full-time at a daycare center and part-time in a warehouse. Id. at 51. Plaintiff
claimed disability due to back pain, herniated disc, high blood pressure, and depression. Id. at
29. She has reported hearing voices since 2001 related to miscarriages she has suffered. Id. at
52. Plaintiff takes Xanax and Paroxetine for anxiety, Trazadone and Prazosin to help her sleep,
and Naprosyn for pain. Id. at 78-79.
During the hearing, Plaintiff testified that she lives with her two children. Id. at 76.
Their father, Plaintiffs boyfriend, helps out with the children and around the house. Id. at 77.
Plaintiffs parents also visit and assist her. Id. at 77-78. Although Plaintiff has friends, and is
able to take the bus alone, she told a state agency psychologist that her anxiety and depression
have left her unable and unwilling to socialize. Id. at 53.
Plaintiff worked for five years at a daycare center, which closed for financial reasons in
December 2011. Id. at 69. She testified that working with the children eased her depression by
keeping her busy but that anxiety has made her unable to work since March 2012, when she was
injured as a passenger on a bus. Id. at 69-71.
C.

Summary of the Relevant Medical Evidence

Plaintiff was seen in the emergency room after the bus accident on March 24, 2012. Id.

2

at 52, 328. She complained of lower back pain and tenderness in her right shoulder. Id. X-rays

showed straightening of the cervical spinal curve but were otherwise normal, and Plaintiff was
prescribed Naprosyn and Flexeril and was advised to avoid heavy lifting. Id. at 52, 331-33. On
March 27, 2012, Plaintiff returned to the ER for neck, shoulder, and back pain. Id. at 52, 319.

The records indicate that her range of motion and thoracic spine were normal. Id. She was again
prescribed Naprosyn and Flexeril and was told to avoid heavy lifting. Id. at 52, 321. In May
2012, Plaintiff underwent an MRI, which showed some positive results, including disc herniation
and left foraminal stenosis. Id. at 52, 344. A June 26, 2012 EMG study, which was performed
due to neck and back pain, revealed radiculopathy on Plaintiff’s right side. Id.
On August 20, 2012, Dr. Eric Howard Kuo examined Plaintiffs brain MRI and reported
it to be unremarkable, showing no signs of a stroke. Id. at 53, 469. He examined Plaintiffs
lumbar spine MRI and reported that it showed mild disc disease. Id.

Physical examination

showed a normal range of motion, no tenderness, and normal sensation in the upper and lower
extremities. Id. Dr. Kuo recommended continuing physical therapy. Id.
In August 2012, Plaintiff was referred to Dr. Boqing Chen.

Id. at 387.

Dr. Chen

diagnosed severe neck and back pain with radicular pain. Id. at 53, 400. In September 2012, Dr.
Chen gave Plaintiff lumbar epidural steroid injections. Id. at 42 1-22. Plaintiff told Dr. Kuo in
November 2012 that the injection had been helpful. Id. at 473. On March 5, 2013, Dr. Chen
stated on a Medical Certificate that Plaintiff was disabled as of March 24, 2012 and was unable
to perform her regular work due to lumbar radiculopathy. Id. at 394.
In an August 6, 2012 report, chiropractor Dr. Thomas A. Debari indicated, inter atia, that
Plaintiff could rarely lift and carry up to twenty-five pounds, occasionally lift and carry up to
twenty pounds, frequently lift and carry up to ten pounds, stand or walk for two to four hours in

3

an eight-hour day, and sit for two to four hours in an eight-hour day. Id. at 573.
On August 6, 2013, Dr. Doris Koduah examined two MRI studies and an EMG that had
been performed on Plaintiff. Id. at 485. Dr Koduah reported “no evidence of lumbar hemiation”
on the two studies and “no evidence of pathology.” Id.
Plaintiff began treatment at Mount Carmel Guild on December 13, 2012. Id. at 434. She
reported auditory and visual hallucinations, feeling overwhelmed, difficulty focusing, and crying
constantly. Id. at 434. Plaintiff was diagnosed with dysthymic disorder2 and was given a Global
Assessment of Functioning (“GAF”) score of 50-55. Id. at 440.
An October 30. 2013 report by Mount Carmel Guild nurse practitioner Olayinka Aramide
stated that Plaintiff had major depressive disorder with psychotic features. with a GAF score of
53.

Id, at 451.

Ms. Aramide found that Plaintiff had marked limitation in multiple areas,

including: maintaining attention and concentration for extended periods; performing activities
within a schedule; maintaining regular attendance and being punctual within customary
tolerances; sustaining an ordinary routine without supervision; working in coordination with or
proximity to others without being distracted by them; completing a normal workweek without
interruptions from psychologically based symptoms; and performing at a consistent pace without
an unreasonable number and length of rest periods. Id. at 45 1-58. Ms. Aramide’s report stated
2

A diagnosis of dysthymic disorder requires “[d]epressed mood for most of the day, for more
days than not, as indicated by either subjective account or observation by others, for at least two
years,” and problems with at least two of the following: eating, sleeping, energy, self-esteem,
concentration, or hopefulness. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Health Disorder: DSM-5, F34.1 (5th ed. 2013).
A GAF score is a “numerical summary of a clinician’s judgment of [an] individual’s overall
level of functioning.” Rivera v. Astrue, No. 12-6622, 2014 WL 1281136, at *7 (E.D. Pa. Mar. 27,
2014) (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 32 (4th ed. 2000) (“DSM-IV-TR”). A score in the range of 51 to 60 indicates
“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).” Id.
4

that Plaintiff was incapable of even low stress work. Id.
In a March 4, 2014 report and a May 2014 questionnaire, Ms. Aramide noted major
depressive disorder with psychotic features, panic disorder with agoraphobia, and a OAF score
of 53. Id. at 596-603. In contrast to the October 30, 2013 report, however, Plaintiff was found to
suffer only moderate limitations in several areas of workplace functioning, such as in the ability
to complete a normal workday and workweek without interruptions from psychologically based
symptoms and the ability to perform at a consistent pace. Id.

Ms. Aramide found marked

limitation in Plaintiffs ability to understand, remember, and carry out detailed instructions and
in her ability to respond to work pressures and changes in routine in a usual work setting. Id.
Records indicate Plaintiffs condition improved with treatment and medication from
October 11,2013 to March 18, 2014. Id. at 563. On March 18, 2014, Plaintiff reported that she
was feeling much better, with improved sleep and appetite and only ‘mild” depression and
anxiety. Id,
On October 9, 2012, Dr. Justin Fernando evaluated Plaintiff, at the request of the state
agency, for her complaints of disc herniation and hypertension. See id. at 386-88. He found that
Plaintiffs gait was normal; she accomplished heel-and-toe walking without difficulty; and her
squatting was full and her station normal. Id. at 386-87. Dr. Fernando’s diagnostic impression
was “chronic lower back pain with unilateral subjective symptoms of radiculopathy (no clinical
indication of disc or nerve involvement).” Id. He found some evidence of restricted mobility
and stiffness, which he stated could explain the pain alleged by Plaintiff, but found no sign of
disc abnormality or nerve impingement of the lumbar spine. Id.
On October 4, 2012, Steven Yalkowsky, Ph.D., a licensed psychologist, examined
Plaintiff at the request of the state agency. Id. at 53, 382. Dr. Yalkowsky reported that during

5

the examination Plaintiff was pleasant and friendly, with intact social skills, and was adequately
dressed and groomed.

Id.

Although Plaintiff appeared emotional and depressed during the

examination, and cried frequently, her thought processes were logical, coherent, and goal
directed and Plaintiffs cognitive ability was adequate.

Id.

Her memory functioning was

adequate and she was able to recall and clearly describe past experiences in detail. Id.

Dr.

Yalkowsky observed no abnormal thought content or signs of serious psychopathology. Id. Dr.
Yalkowsky’s diagnostic impression was depression, with the need to rule out anxiety disorder,
and he assigned a GAF of 55. Id. at 53, 384.
On November 21, 2012 Dr. Mary McLarnon, a state agency physician, reviewed the
available medical evidence. See id. at 96-97.

She completed a physical residual functional

capacity assessment stating that Plaintiff was capable of lifting up to fifty pounds occasionally
and twenty-five pounds frequently; standing, walking, or sitting for six hours in an eight-hour
day; and performing unlimited pulling and pushing within the given weight restrictions. Id. In
March 2013, Dr. Nancy Simpkins, a state agency physician, reviewed and affirmed these
conclusions. Id. at 111-12.
On November 6, 2012 Brady Dalton, Ph.D., a state agency psychological consultant,
reviewed the available medical evidence. See Id. at 95. He concluded that Plaintiff was capable
of carrying out simple and detailed instructions; sustaining attention through extended periods of
time (up to two hours); following work-like procedures; and making simple work-related
decisions. Id. at 98. In April 2013 Dr. Thomas Yared, a state agency psychiatrist, reviewed and
affirmed these conclusions. Id. at 112-14.

6

III.

LEGAL STANDARD
A.

Standard of Review

This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.

§ 405(g) and 13$3(c)(3). The Court is not “permitted to re-weigh the evidence or impose [its]
own factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm’r of Soc. Sec., 667 f.3d 356, 359 (3d Cir. 2011); see also 42 U.S.C.

§ 405(g).

Nevertheless, the Court must “scrutinize the record as a whole to determine whether the
conclusions reached are rational” and supported by substantial evidence. Gober v. Matthews,
574 f.2d 772, 776 (3d Cir. 197$) (citations omitted). Substantial evidence is more than a mere
scintilla, and is “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Chandler, 667 F.3d at 359 (citing Richardson v, Perales, 402 U.S. 389, 401
(1971)). If the factual record is adequately developed, substantial evidence “may be ‘something
less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being supported by
substantial evidence.” Daniels v. Astrue, No. 4:08-1676, 2009 WL 101 1587, at *2 (M.D. Pa.
Apr. 15, 2009) (quoting Consolo v. Fed. Mar. Comm

‘ii,

383 U.S. 607, 620 (1966)). In other

words, under this deferential standard of review, the Court may not set aside the AU’s decision
merely because it would have come to a different conclusion. Cruz v. Comm ‘r of Soc. Sec., 244
F. App’x 475, 479 (3d Cir. 2007) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).
B.

Determining Disability

Pursuant to the SSA, in order to be eligible for benefits, a plaintiff must show she is
disabled by demonstrating an inability to “engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in

7

death or which has lasted or can be expected to last for a continuous period of not less than
twelve months.” 42 U.S.C.

§

423(d)(l)(A), 13$2c(a)(3)(A). Taking into account the plaintiffs

age, education, and work experience, disability will be evaluated by the plaintiffs ability to
engage in her previous work or any other form of substantial gainful activity existing in the
national economy. 42 U.S.C.

§ 423(d)(2)(A),

1382c(a)(3)(B). A person is disabled for these

purposes only if his physical or mental impairments are “of such severity that he is not only
unable to do his previous work, but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy
42 U.S.C.

§

.

.

.

1382c(a)(3)(B).

Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary
to prove the existence of a disabling impairment by defining a physical or mental impairment as
“an impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”
42 U.S.C.
C.

§ 423(d)(3),

13$2(a)(3)(D).

Sequential Evaluation Process

The Social Security Administration follows a five-step, sequential evaluation to
determine whether a plaintiff is disabled within the meaning of the statute.

20 C.F.R.

§

404.1520, 416.920. first, the AU must determine whether the plaintiff is currently engaged in
gainful activity. Sykes, 228 F.3d at 262. Second, if she is not, the AU determines whether the
Plaintiff has an impairment that limits her ability to work.

Id.

Third, if she has such an

impairment, the AU considers the medical evidence to determine whether the impairment is

$

listed in 20 C.F.R. Part 404, Subpart P, Appendix I (the “Listings”). If it is, this results in a
presumption of disability. Id. If the impairment is not in the Listings, the AU must determine
how much residual functional capacity (“RFC”) the applicant retains in spite of her impairment.
Id. at 263. Fourth, the AU must consider whether the plaintiffs RFC is enough to perform her
past relevant work. Id. Fifth, if her RFC is not enough, the AU must determine whether there is
other work in the national economy the plaintiff can perform. Id.
The evaluation continues through each step unless it is determined at any point the
plaintiff is or is not disabled. 20 C.F.R.

§

404.1520(a)(4), 416.920(a)(4). The plaintiff bears

the burden of proof at steps one, two, and four, upon which the burden shifts to the
Commissioner at step five. Sykes, 228 F.3d at 263. Neither party bears the burden at step three.
Id. at 263 n.2.
IV.

DISCUSSION
A.

Summary of the AU’s Findings

At step one, the AU found Plaintiff met the insured status requirements of the SSA and
that Plaintiff had not engaged in substantial gainful activity since March 24, 2012, the alleged
onset date. Id. at 48. At steps two and three, the AU found Plaintiffs impairments of cervical
and lumbar degenerative disc disease/HNP’s, lumbar radiculopathy, hypertension, obesity,
depression, anxiety, panic disorder without agoraphobia, and PT$D were “severe,” but not
severe enough to meet, either singly or in combination, any of the impairments listed in 20
C.F.R.

§ 404,

Subpart P, Appendix I. Id. at 49.

The AU concluded Plaintiff had the residual functional capacity (“RFC”) to perform the
exertional demands of medium work, except Plaintiff “cannot climb any ladders, ropes, or
scaffolds,” she can “climb ramps and stairs frequently and balance, stoop, kneel, crouch, and

9

crawl frequently,” she “must avoid all exposure to hazards,” and Plaintiff “can do simple routine
work with only occasional public or co-worker contact.” Id. at 51. To make this determination,
the AU took into consideration “all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence.”
Id. Specifically, the AU considered Plaintiff’s testimony that she has anxiety and depression
and that she feels overwhelmed with daily living. Id. at 52. The AU also considered Plaintiffs
testimony and medical records regarding the bus accident in March 2012. Id. Further, the AU
took into consideration the medical reports of Dr. Fernando, Dr. Chen, Dr. Debari, Dr.
Yalkowsky, and Ms. Aramide from Plaintiffs treatment at Mount Carmel Guild. See Id. at 5156.
At step four, the AU found Plaintiff was incapable of performing past relevant work as a
daycare worker. Id. at 56. At step five, the AU found there were jobs in significant numbers in
the national economy that Plaintiff could perform. Id. at 57. The AU identified these jobs as:
packager, dishwasher, and janitor. Id. at 56.
B.

Analysis

Plaintiff makes the following arguments in support of her contention that the AU’s
decision should be remanded: (1) the AU erred at step three by failing to explain why Plaintiffs
impairments, considered singly and in combination, did not meet or equal a listed impairment;
(2) the AU erred at step four by failing to sufficiently explain the RFC finding; and (3) the
AU’s hypothetical question to the vocational expert (“yE”) failed to reflect all of the claimant’s
impairments that are supported by the record. See generally Plaintiffs Brief (“P1. Br.”) ECF No.
10. The Court will address each argument in turn.
1.

Step Three

The listings assessed at step three describe impairments the Commissioner considers
I0

severe enough to prevent an individual from engaging in any gainful activity, regardless of age,
education, or work experience. 20 C.F.R.

§ 416.925(a). The listed impairments give rise to

presumptive disability, i.e., if an individual meets a listing, she is considered to be disabled
without consideration of whether she can perform work activity.

Id.

§ 41 6.920(a)(4)(iii);

Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (citations omitted). To be found presumptively
disabled, a plaintiff must show all of the criteria for a listing have been met.

20 C.F.R.

§

416.925(c)(3); Zebley, 493 U.S. at 530. If a plaintiff has two or more severe impairments but
none that meets a listing, the AU must determine whether a claimant’s combined symptoms are
medically equivalent to a listed impairment. 20 C.F.R.

§ 404.1526(a).

Plaintiff argues that the AU failed to support her finding that Plaintiff’s psychiatric
impairments did not meet Listings 12.04 or 12.06 and that the AU failed to combine Plaintiffs
obesity with each of her other impairments in performing the “medical equivalence” comparison.
P1. Br. at 17-23.
In evaluating the AU’s decision at step three, this Court looks at the AU’s decision as a
whole. See Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (“[The case law] does not
require the AU to use particular language or adhere to a particular format in conducting his
analysis. Rather, the function of [the case law] is to ensure that there is sufficient development
of the record and explanation of findings to permit meaningful review.”). Here, as the AU’s
findings were preceded by sufficient discussion of the relevant medical evidence and hearing
testimony, the Court finds that the step three analysis was adequate.
Plaintiff argues that she is entitled to presumptive disability under Listings 12.04 and
12.06 because she suffers from depression and anxiety. P1. Br. at 22. Listings 12.04 and 12.06,
however, require more than a mere diagnosis of depression (12.04) or anxiety (12.06). Plaintiff

11

must also show that she meets the requirements of paragraph B or paragraph C of each listing.
Paragraph B requires extreme limitation of one, or marked limitation of two, of the following:
the ability to understand, remember, or apply information; the ability to interact with others; the
ability to concentrate, persist, or maintain pace; or the ability to adapt or manage oneself. C.F.R.
Pt. 404, Subpt. P, App. I

§

12.04(3), 12.06(B). Paragraph C requires medical documentation

that Plaintiffs disorder has existed for two years or more and evidence that Plaintiff is both
pursuing effective, ongoing medical treatment and is minimally able to adapt to new
environments or demands that are not a part of her present daily life. 20 C.F.R. Pt. 404, Subpt. P,
App. 1

§

12.04(C), 12.06(C).

Here, the AU found that Plaintiff did not meet the requirements of paragraph B or C of
Listings 12.04 and 12.06. The AU noted that Plaintiff suffered from depression and anxiety;
that nurse practitioner Aramide’s October 30, 2013 report found that Plaintiff had been disabled
due to depression since October 2011; and that the October 30 report found Plaintiff to have
“marked” limitations in concentration, persistence, and pace. Tr. at 54. But the AU also noted
that a March 4, 2014 report and a May 2014 questionnaire completed by Ms. Aramide and Ms.
Miller, a social worker, classed several formerly “marked” limitations as only “moderate”; that
records from October 11, 2013 to March 18, 2014 showed Plaintiffs anxiety and depression had
improved with medication and treatment, Id.; that Dr. Yalkowsky found Plaintiff to have
adequate cognitive ability, Id. at 53; and that Plaintiff was able to take public transportation
independently, perform the activities of daily living, and interact with her children. Id. at 54-55.
The AU’s discussion of the medical evidence and hearing testimony sufficiently conveyed her
reasons for finding that Plaintiffs psychiatric impairments were only moderate and that Plaintiff
did not, therefore, meet Listing 12.04 or 12.06.

12

finally, Plaintiff argues the AU failed to evaluate Plaintiffs obesity in accordance with
Social Security Ruling (“SSR”)

02-Olp, 2002

$SR LEXIS I (Sept. 12, 2002). P1. Br. at 17-22.

The Third Circuit addressed this issue in Diaz v. Commissioner of Social Security, where the
AU found obesity was a severe impairment at step two, but failed to assess the impact of obesity
on the plaintiffs other impairments at step three. 577 F.3d 500, 503 (3d Cir. 2009). The court
determined that “an AU

must meaningfully consider the effect of a claimant’s obesity,

individually and in combination with her impairments, on her workplace function at step three
and at every subsequent step.” Id. at 504. In assessing the impact of claimant’s obesity, the AU
must discuss the evidence and explain her reasoning in a manner that would be “sufficient to
enable meaningful judicial review.” Id.
Here, the AU notes that Plaintiff suffers from obesity as a severe condition and that “the
combined effects of obesity with other impairments may be greater than might be expected
without obesity.” Tr. at 55. The AU goes on to discuss the severity of each of Plaintiffs other
impairments in turn before concluding that her obesity, even when considered in combination
with those impairments, does not result in a disabling limitation of functioning. Tr. at 55. This
analysis is sufficient to permit meaningful judicial review of the decision. As noted above, the
AU is limited to no “particular format” in conducting the step three analysis, Jones, 364 f.3d at
505, and “need not employ particular ‘magic’ words” in her decision. Diaz, 577 f.3d at 504.
Accordingly, the Court finds that the AU’s evaluation of obesity was adequate and that her step
three analysis was supported by substantial evidence.
2.

Step Four

Plaintiff argues that the AU erred at step four by failing to sufficiently explain the RFC
analysis. P1. Br. at 23-34. An Rf C assessment “must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory
13

findings) and nonmedical evidence (e.g., daily activities, observations).” Titles II & Xvi:
Assessing Residual functional Capacity in Initial Claims, SSR 96-$P (S.S.A. July 2, 1996).
Under the substantial evidence standard of review, the issue is whether sufficient evidence
reasonably supports the AU’s analysis. See Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.
2003). The Court finds that the AU’s analysis is supported by substantial evidence.
first, Plaintiff challenges the AU’s reliance on state agency opinion. P1. Br. at 26-27.
The AU found Plaintiff capable of the frill range of medium work, and explained that in
reaching this conclusion she afforded great weight to the opinions of the Department of Social
Services (“DSS”). Tr. at 55. The AU
determination. See 20 C.F.R.

is ultimately responsible for making the RFC

§ 404.1527(e)(l), 404.1546(c). She is “entitled to weigh all

evidence in making [her] finding,” Brown v. Astrue, 649 F.3d 193, 196 (3d Cir. 2011), and “the
opinion of a treating physician does not bind the AU on the issue of functional capacity.” Id. at
196 n.2. State agency opinions “merit significant consideration as well.” Chandler v Comm ‘r
ofSoc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).
Here, the AU explained that she gave great weight to the opinions of DSS because they
were consistent with the record as a whole. Tr. at 55. Specifically, the AU found the findings
of DSS to be consistent with the opinions of Dr. Fernando, Dr. Koduah, and Dr. Kuo; with
Plaintiffs testimony that she could live independently and perform the tasks of daily living; and
with records from Mount Carmel Guild showing that Plaintiff improved with medication and
treatment. Id. The opinions of Dr. Chen, Dr. Debari, and Ms. Aramide, on the other hand, were
afforded less weight because they were not consistent with the record as a whole. Id. at 53-54.
The AU’s analysis is sufficient to permit meaningful judicial review and her decision is
supported by substantial evidence.

14

Second, Plaintiff argues that the AU failed to give adequate consideration to Plaintiffs
subjective complaints of pain in finding Plaintiff capable of the full range of medium work. P1.
Br. 27-34. The Court disagrees. A Plaintiffs subjective complaints should be given “great
weight” and may not be disregarded unless there is contrary medical evidence. See Mason v.
$halala, 994 F.2d 1058, 1067-68 (3d Cir. 1993). But the AU must “ma[k]e specific findings of
fact, including credibility, as to residual functional capacity.” Id.
Here, the AU found that Plaintiffs “statements concerning the intensity, persistence and
limiting effects” of her physical symptoms were “not entirely credible.” Tr. at 51. The decision
makes clear that this finding rests on objective medical evidence: Dr. Fernando found no
evidence of disc abnormality or nerve impingement of the lumbar spine, noted that Plaintiffs
gait was normal and that she accomplished heel and toe walking without difficulty, and reported
that Plaintiff exhibited a full range of motion of the hips, knees, and ankles, id. at 53; Dr. Koduah
found “no evidence of lumbar herniation on two MRI studies” and “no evidence of any
pathology,” Id.; and Dr. Kuo stated that MRIs of Plaintiffs neck and lumbar spine showed only
mild disc disease. Id.

Because the AU properly considered the whole record in assessing

Plaintiffs subjective pain complaints, the Court finds that the RFC analysis was supported by
substantial evidence.
3.

Step Five

finally, Plaintiff asserts that the AU’s step five finding was not supported by substantial
evidence because the hypothetical question asked to the vocational expert (“yE”) did not reflect
all of Plaintiffs credibly established impairments and limitations. P1. Br. at 34-37.

See

Rutherford v. Barnhart, 399 f.3d 546, 553 (3d. Cir. 2005) (finding that the AU must convey to
the VE all of the credibly established limitations); see also Ramirez v. Barnhart, 372 F.3d, 546
incorporates a Plaintiffs limitations into a

(3d. Cir. 2004) (stating that when an AU
15

hypothetical, “great specificity” and accuracy is required). Specifically, Plaintiff asserts that the
AU’s hypothetical to the yE, contemplating the ability to perform “simple routine work, [with]
no more than occasional public and coworker contact,” did not properly account for Plaintiffs
moderate difficulties in maintaining concentration, persistence, or pace. P1. Br. at 35-36.
An AU may ask a VE to “offer expert opinion testimony in response to a hypothetical
question about whether a person with the physical and mental limitations imposed by the
claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, either
as the claimant actually performed it or as generally performed in the national economy.” 20
C.F.R.

§ 404.1560. Here, the AU first asked the VE to assume a hypothetical Plaintiff who:
Could occasionally lift 50 pounds, frequently 25 pounds, stand or walk six hours
a day, pushing and pulling within the same weight restrictions, and would be
again [capable of] simple routine work, no more than occasional public and
coworker contact, no ladders, ropes, scaffolds, no hazards such as dangerous
machinery or heights, and no more than frequent ramps, stairs, balance, stoop,
knee, crouch, crawl.

Tr. at $4. The VE found that this hypothetical person could perform the jobs of a packager, a
dishwasher, and a janitor. Id. at $4-$5. The AU then added further limitation of three absences
every month. The VE responded that, considering those added limitations, there would be no
jobs available in the regional or national economy, as a new hire, for someone of Plaintiffs age,
experience, and educational level. Id. at 85.
At step three, the AU

determined Plaintiff had moderate difficulties with regard to

concentration, persistence, or pace. Id. at 50. The AU’s hypothetical question to the VE must
accurately convey all credibly established limitations. See Green v. Colvin, No. 14-1942, 2016
WE 1696797 at *3 (E.D. Pa. Apr. 27, 2016) (finding that an AU’s RFC evaluation and
hypothetical question were deficient because they failed to incorporate the AU’s own findings
that the claimant has mild limitations with concentration, persistence, or pace).
16

Here, it is

unclear whether the AU sufficiently included her step three findings in the hypothetical question
to the yE. The AU noted that Plaintiff could perform only “simple routine work, [with] no
more than occasional public and coworker contact.” Tr. at 84. This limitation to simple, routine,
and tow contact work does not appear to account for Plaintiffs difficulties in concentration,
persistence, and pace as established by the RFC analysis.

See Ramirez, 372 F.3d at 546

(hypothetical question to VE limiting Plaintiff to “simple one or two step tasks” failed to account
for the “deficiencies in pace” noted by the AU at step three). On remand, the AU should
include all of Plaintiffs credibly established impairments and limitations in her hypothetical
questions to the yE.
V.

CONCLUSION

F or the foregoing reasons, the AU’s decision is affirmed in part, vacated in part, and the
matter is remanded for further administrative proceedings consistent with this Opinion. An
appropriate order accompanies this Opinion.

DATED:

I

,

2017

CLAIRE C. CECCHI, U.S.D.J.

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