WOODS v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge Kevin McNulty on 06/29/2017. (ek)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:16-cv-O 1657-KM

SHIRLA WOODS,
Plaintiff,

OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Shirla Woods brings this action pursuant to 42 U.S.C.

§ 405(g) and

1383(c) to review a final decision of the Commissioner of Social Security
(“Commissioner”) denying Woods’s claims for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (the “SSA”) and for
Supplemental Security Income (“SSI”) under Title XVI of the SSA. See 42 U.S.C.
§ 401—403 and 1381—1385. For the reasons set forth below, the careful and
well-reasoned decision of the Administrative Law Judge (“AU”) is largely
affirmed, but is REVERSED and REMANDED for further proceedings as to
certain discrete issues, listed in the Conclusion to this opinion.
I.

BACKGROUND
Woods applied for DIB and SSI benefits on August 23, 2012, alleging a

November 10, 2011 onset of disability (R 529—38).’ Her claim was denied
initially on January 17, 2013 (R 452—63), and again on reconsideration on May
22, 2013 (R 473—75). Woods subsequently requested and received a hearing

Pages of the administrative record (ECF No. 7) are cited as “R
Plaintiffs Brief (ECF No. 12) are cited as “P1 Br
1

“.

1

“.

Pages of the

before an AU

(see R 30—6 1, 476), at which she testified on June 17, 2014 (see

R 36—51).
AU

Kimberly L. Schiro issued a decision dated July 29, 2014, finding

Woods “not disabled” (see R 15—25). On October 2, 2014, Woods filed a request
for review of the AU’s decision (see R 9—11), which the Appeals Council denied
on January 27, 2016 (see R 1—5), thereby rendering the AU’s July 29, 2014
decision the final decision of the Commissioner. Woods now appeals that
decision.
A prior application is relevant. Woods filed for Title II DIB on August 13,
2009, alleging that she had been disabled since February 26, 2009. (See R 15)
Another AL

Miachel L. Lissek, denied Woods’s 2009 application in a decision

dated November 9, 2011. See Woods v. Colvin, No. 12-CV-06088 DMC JBC,
2013 WL 5730539. (See also R 235—378 (Exhibits 1F—18F)) On appeal to the
United States District Court for the District of New Jersey, Judge Cavanaugh
affirmed AU

Lissek’s decision on October 21, 2013. See Woods, 2013 WL

5730539, at *1. Referring to this history, AU

Schiro concluded in her July 29,

2014 decision that Woods likely had an even greater residual functional
capacity than she had possessed in 2011. (R 15)
II.

DISCUSSION
To qualify for Title II DIB benefits, a claimant must meet the insured

§ 423. To be eligible for Title XVI 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 under either statute, a claimant must show that she is unable to
engage in substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that
has lasted (or can be expected to last) for a continuous period of not less than
twelve months. 42 U.S.C.

§ 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Diaz v.

Comm’r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009).

2

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, 416.920. This
Court’s 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), 416.920(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
CFR Pt. 404, Subpt. P, App. 1, Pt. A. If so, the claimant is
automatically eligible to receive benefits (and the analysis ends); 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 Social Security
Administration 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), 416.920(g); see Poulos v. Comm’r of Soc. Sec.,

474 F.3d 88, 9 1—92 (3d Cir. 2007). If so, benefits will be denied; if
not, they will be awarded.
3

For the purpose of this appeal, the Court conducts a plenary review of
the legal issues. See Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d
Cir. 1999). The factual findings of the AU are reviewed “only to 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 “less than a preponderance of the evidence but more than a mere
scintilla.” Jones v. Bamhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation
omitted). “It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. When substantial evidence exists to
support the AU’s factual findings, this Court must abide by the AU’s

§ 405(g)).
This Court may, under 42 U.S.C. § 405(g), affirm, modify, or reverse the

determinations. See id. (citing 42 U.S.C.

Commissioner’s decision, or it may remand the matter to the Commissioner 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) (non
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
22 1—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 PodecZworny, 745 F.2d at 221—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. Bamhart, 111 F. App’x 652,
658 (3d Cir. 2004) (“We will not accept the AU’s conclusion that [the claimantj
was not disabled during the relevant period, where his decision contains
significant contradictions and is therefore unreliable.”) (not precedential). 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

4

evidence” in the record. Adorno u. Shalala, 40 F.3d 43, 48 (3d Cir. 1994)
(internal quotation marks omitted).
B. The AU’s Decision
AU

Schiro properly followed the five-step process. I summarize her

conclusions here:
Step 1
At step one, AU Schiro found that Woods met the insured requirements
of the SSA through December 31, 2014, and had not engaged in substantial
gainful activity from the alleged onset date of November 10, 2011 (R 17).
Step 2
At step two, the AU found that Woods had the following severe
impairments: insulin dependent diabetes mellitus, degenerative joint disease of
the spine, and depression with anxiety (R 18).
At this step, the AU rejected Woods’s claim that she suffers a severe
impairment attributable to fibromyalgia. Substantial evidence in the record,
which the AU thoroughly evaluated, supported this conclusion. Specifically,
Schiro recognized that Woods reported to consultative examiner Rahel
Eyassu, MD that she had been diagnosed with fibromyalgia. But the AU also

AU

observed that medical records from Woods’s treating physicians did not show
any such diagnosis or evidence of the tender points typically associated with
fibromyalgia. (R 18; see, e.g., R 555, 604—606, 617_23)2 Woods was not

Judge Cavanaugh discussed the “conflicting evidence with respect to Plaintiffs
fibromyalgia diagnosis” in his October 21, 2013 opinion:
Dr. Rubbani, the consultative examiner, diagnosed Plaintiff
with fibromyalgia. Dr. Fadairo Afolabi, a chiropractor at
Robinson Weilness Center, found fibromyalgia as a
“symptom,” but not as a formal diagnosis. (Tr. 202_03).2
After conducting a laboratory test in September 2009, Dr.
Gandhi found an indication of fibromyalgia based on
Plaintiffs elevated sedimentation rate but did not diagnose
Plaintiff as suffering from fibromyalgia. (Tr. 20, 242, 326—
27). Finally, Dr. David, a medical doctor, did not diagnose

2

5

receiving medication or any other treatment for fibromyalgia. (Id.) Consistently,
the consultative examiner found no joint swelling, crepitus, or instability, and
trigger
could not identify any particular trigger/tender points because, during a
3
point examination, Woods complained of pain everywhere. (Id.)
also acknowledged Woods’s alleged fibroids and anemia, but
again concluded that the treatment records did not establish that either caused
a medically determinable severe impairment. (R 18, 555; see, e.g., 604, 6 16—33)
The AU

Substantial evidence supported this conclusion as well.
Step 3
Schiro stated that Woods’s impairment or combination
of impairments neither met nor medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R 18). With
At step three, AU

respect to physical impairments, she found that Woods failed to meet the
4
criteria for medical listing 1.02, Major dysfunction of joint(s); for medical
Plaintiff with fibromyalgia or even treat her for this
condition. (Tr. 198).
*3 (D.N.J. Oct.
Woods v. Colvin, No. 12-CV-06088 DMC JBC, 2013 WL 5730539, at
21, 2013). Because, Judge Cavanaugh reasoned, the only diagnosis came from a
consultative examiner and not one of Woods’s own treating physicians, she had failed
to carry her burden to show functional limitations and a diagnoses with respect to
fibromyalgia. Id. at * 10.
3
Social Security Ruling 12-2p explains that the Commissioner will find that a
claimant has a medically determinable impairment of fibromyalgia if a licensed
physician (1) diagnoses fibromyalgia and other record evidence does not contradict the
diagnosis and (2) provides evidence of either: (A) the following three criteria: (1)
widespread pain; (2) at least 11 positive tender points recorded on physical
examination (which must be performed in a specific manner), both bilaterally and
above and below the waste; and (3) evidence that other disorders that could cause the
reported symptoms were excluded; or (B) the following three criteria: (1) history of
widespread pain; (2) repeated manifestations of six or more fibromyalgia symptoms;
and (3) evidence that other disorders that could cause the reported symptoms were
excluded. Soc. Sec. Ruling, Ssr 12-2p; Titles H & Xvi: Evaluation of Fibromyalgia, SSR
12-2P (S.S.A. July 25, 2012).
1.02, Major dysfunction of a joint(s), requires:
or
[Giross anatomical deformity (e.g., subluxation, contracture, bony
with
fibrous ankylosis, instability) and chronic joint pain and stiffness
signs of limitation of motion or other abnormal motion of the affected
joint(s), and findings on appropriate medically acceptable imaging of joint
6

listing 1.04, Disorders of the Spine;
6
mellitus. AU

5

and for medical listing 9.08, Diabetes

Schiro specifically found that there was no evidence of

space narrowing, bony destruction, or ankylosis of the affected joint(s).
With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee,
or ankle), resulting in inability to ambulate effectively, as defmed in
1 .OOB2b;
OR
B. Involvement of one major peripheral joint in each upper extremity (i.e.,
shoulder, elbow, or wrist-hand), resulting in inability to perform fine and
gross movements effectively, as defined in 1 .OOB2c.
https: / /www. ssa.gov/ disability! professionals! bluebook! 1 .00-MusculoskeletalAdult.htrn#L02; 20 C.F.R. Pt. 404, Subpt. P, App. 1.
1.04 Disorders of the spine requires:
[Clomprornise of a nerve root (including the cauda equina) or the spinal
cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine);
OR
B. Spinal arachnoiditis, confirmed by an operative note or pathology report
of tissue biopsy, or by appropriate medically acceptable imaging,
manifested by severe burning or painful dysesthesia, resulting in the need
for changes in position or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in l.OOB2b.
https: / /www. ssa.gov/ disability/professionals! bluebook/I .00-MusculoskeletalAdult.htm#l_04; 20 C.F.R. Pt. 404, Subpt. P, App. 1.
6
Former listing 9.08 “evaluated diabetes mellitus by inquiring whether the
claimant suffered from neuropathy, frequent episodes of diabetic ketoacidosis, or
severe retinal inflammation.” Christiansen v. Colvin, No. 5:14-CV-1314-AKK, 2015 WL
875427, at *3 (N.D. Ala. Mar. 2, 2015). However, as of June 7, 2011, listing 9.08 has
been replaced by revised Listing 9.00, Endocrine disorders, which states that the SSA
“evaluate[sj impairments that result from endocrine disorders under the listings for
other body systems,” and provides examples of other disorders that may result.
https: / /www. ssa. gov/ disability/professionals! bluebook/ 9.00-Endocrine-Adult. htm;
7

neuropathy, acidosis, retinopathy, or any end organ damage to support Listing
9.08. 1 find that substantial evidence supports these conclusions.
The AU

also found that Woods’s mental impairments, alone and in

combination, did not meet or medically equal listings 12.04, Depressive,
bipolar and related disorders, or 12.06, Anxiety and obsessive-compulsive
7
disorders.

20 C.F.R. Pt. 404, Subpt. P, App. 1. See Revised Medical Criteria for Evaluating
Endocrine Disorders, 76 Fed.Reg. 19,692.
A claimant meets or medically equals listing 12.04, Depressive, bipolar and
related disorders, when he or she either satisfies both the paragraph A and paragraph
B criteria, or both the paragraph A and paragraph C criteria of that listing.
To satisfy the paragraph A criteria, a claimant must, in essence, medically
document the persistence of depressive or bipolar disorder. To satisir the Paragraph
B, a claimant must demonstrate an extreme limitation in one, or a marked limitation
in two, of the following areas of mental functioning: (1) Understand, remember, or
apply information; (2) Interact with others; (3) Concentrate, persist, or maintain pace;
and (4) Adapt or manage oneself. To satisfy the Paragraph C criteria, the claimant
must demonstrate that his or her mental disorder is “serious and persistent,” meaning
the existence of the disorder has been medically documented for at least two years and
there is evidence of both: (1) medical treatment, mental health therapy, psychosocial
support, or a highly structured setting that diminishes the signs and symptoms of the
disorder, and (2) a minimal capacity to adapt to changes in the environment or
demands not already part of daily life.
https: / /www. ssa.gov/ disability! professionals/bluebook! 12. 00MentalDisordersAdult.htm#12_04; 20 C.F.R. Pt. 404, Subpt. P, App. 1.
Until recently, and under the version of the medical listings AU Schiro
considered, Paragraph B of listing 12.04 required the claimant to demonstrate that his
or her disorder caused 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)
Paragraph C
“Repeated episodes of decompensation, each of extended duration..
required:
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” any of three symptoms: 1)
repeated episodes of decompensation; 2) a residual disease
process resulting in such marginal adjustment that even a
minimal increase in mental demands or change in
environment would cause the individual to decompensate; or
3) a history of one or more years’ inability to function outside
.

8

.“

Schiro acknowledged that Woods reported to the psychiatric
care for
consultative examiner, Dr. Tolchin, that she has received outpatient
AU

found no evidence regarding mental

mental disorders since 2012. But the AU

hearing
health care in the record. She noted that Woods also testified at her
bed
that she is not receiving mental health treatment or being prescri
psychotropic medication. (R 18) AU

Schiro also considered record evidence

personal
and Woods’s own testimony indicating that Woods handles her own
, and gets
care, drives and shops independently, pays bills and handles money
The only
along with others including authority figures. (R 19; see R 586—92)
the
indication of Woods’s mental health impairments in the record from
Schiro reasoned, were Dr. Toichin’s report that Woods
handling
has mildly impaired attention and concentration, and trouble with
stress. (R 19) Dr. Toichin also diagnosed Woods with major depression

relevant time frame, AU

secondary to chronic pain. (Id.)
, I find
Whether using the former or newer 12.04 and 12.06 listing criteria
record
that substantial evidence supports AU Schiro’s conclusion that the
criteria. (See
evidence satisfies neither the “paragraph B” nor the “paragraph C”
R 18—19)
Step 4- RFC and Ability to Perform Past Work
Next, AU

Schiro defined Woods’s RFC as follows:

of a highly supportive living arrangement, with an indication
of continued need for such an arrangement.
7, at *4
See Kovach v. Co,nm’r of Soc. Sec., No. CV 15-6999 (KM), 2017 WL 109503
4769731, at
(D.N.J. Mar. 22, 2017); Trzeciak v. Colvin, No. CV 15-6333 (KM), 2016 WL
*7 (D.N.J. Sept. 12, 2016). (R 18—19)
A claimant meets or medically equals listing 12.06, Anxiety and obsessiveand
compulsive disorders, when he or she either satisfies both the paragraph A
criteria of that listing.
paragraph B criteria, or both the paragraph A and paragraph C
To satisfy the paragraph A criteria, a claimant must meet medical
hobia,
documentation requirements for an anxiety disorder, panic disorder or agorap
the same for
or obsessive-compulsive disorder. The paragraph B and C criteria are
listing 12.06 as for listing 12.04, see supra n.6.
ordershttps: / / www. ssa.gov/ disability/professionals/bluebook/i 2 .00-MentalDis
Adult.htm#12_04; 20 C.F.R. Pt. 404, Subpt. P, App. 1.
9

[T]he claimant has the [RFC] to perform sedentary
work as defined in 20 CFR 404.1567(a) and
416.967(a) except that she can perform simple,
routine tasks at the sedentary exertional level. She
cannot climb ladders/ropes/scaffolds or work
around hazards (moving mechanical parts or at
unprotected heights). She cannot crawl and can
occasionally climb ramps and stairs, stoop, kneel
and crouch. She is limited to low stress work, which
I define as follows: there are only occasional
changes in work routines: the work only involves
simple decision-making: there is occasional contact
with coworkers and supervisors: there is no public
contact: the work cannot require working on teams
or in collaboration with others. Finally, she requires
a five-minute break for every hour of sitting.
(R 19_20).8

To arrive at this RFC, AU

Schiro comprehensively evaluated the record

evidence, following a two-step process in which she determined (1) whether the
evidence supports the existence of medically determinable physical or mental
impairments and whether the impairment could reasonably be expected to
produce the pain and other symptoms Woods reports; and (2) the extent to
which the “intensity, persistence, and limiting effects” of Woods’s symptoms
limit Woods’s functioning, assigning credibility-based weight to statements
concerning intensity, persistence, and limiting effect in the record. (R 20)9
8

The Social Security Administration defmes “sedentary work” as involving:
lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally
and other sedentary criteria are met.

20 C.F.R. § 404. 1567(a), 416.967(a).
AU Schiro applied the guidance of SSR 96-7p, which was superseded by SSR
16-3p. The new guidance eliminates the term “credibility” from the agency’s sub
regulatory policy and was issued after AU made her decision. See Soc. Sec. Ruling 16.3p; Titles H & Xvi: Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Mar.
16, 2016). Under the new guidance of SSR 16-3p, however, ALJs are still called on to
10

Turning to the record, AU

Schiro considered that Woods reports chronic

pain throughout her body but particularly in her back, hips, and shoulders. (R
21) The AU recited Woods’s allegations that she wakes with pain in the
morning, has difficulty sitting, concentrating, and falling asleep due to pain,
uses a cane to walk, and depends in part on her mother—with whom Woods
and her young daughter live—to cook and clean. (R 20—2 1) Woods also
occasionally requires her mother’s help in the shower, AU Schiro noted. The
AU found it significant that Woods is, however, capable of driving to pick up
her daughter from school, of handling her own personal care (albeit with some
difficulty), of preparing simple foods and performing very light cleaning, and of
going shopping with assistance. (R 20, 22) ALJ Schiro also noted that Woods
avoids taking medication for fear of side effects and dependency. (Id.) She
further observed that Woods’s “only modality of relief is a heating [pad],” which
Woods uses to fall asleep. (R 20, 22)
Schiro then listed several types of medical evidence that would
support Woods’s subjective reports but which are lacking in the record:
evidence of significant musculoskeletal impairment; reports of positive straight
AU

leg or range of motion testing; evidence of neurological deficits; a fibromyalgia
diagnosis, evidence of tender points, or other clinical indicia of fibromyalgia;
evidence that Woods sought treatment from an orthopedist; evidence that
Woods cannot ambulate without a cane or that a physician prescribed such an
assistive device; and evidence of acidosis, neuropathy, retinitis, lower extremity
(1) determine whether the claimant has a medically determinable impediment that
could reasonably be expected to produce the claimant’s alleged symptoms and (2)
evaluate the intensity and persistence of the claimant’s symptoms, based on the
record evidence as a whole. This is the same responsibility with which AUJs were
charged under the agency’s previous guidance. See Cole v. Colvin, No. 15-3883, 2016
WL 3997246, at *1(7th Cir. July 26, 2016). (“ITjhe change in wording is meant to
clarify that administrative law judges aren’t in the business of impeaching claimants’
character; obviously administrative law judges will continue to assess the credibility of
pain assertions by applicants, especially as such assertions often cannot be either
credited or rejected on the basis of medical evidence.”); Murnarte v. Colvin, No. CV 157704 (KM), 2017 WL 548942, at *6 (D.N.J. Feb. 10, 2017).
11

evidence of
edema, neurological deficits, or abdominal abnormalities (i.e.,
complications due to diabetes mellitus). (1? 21)
ce of
Schiro weighed the absence of this evidence against the presen
of the cervical
the following evidence: a diagnosis of degenerative joint disease
no associated
and lumbosacral aspects of the spine (although the record shows
t records from
positive clinical findings, the AU cautioned); annual treatmen
s mellitus and
Woods’s nephrologist, Dr. Gandhi, who manages Woods’s diabete
AU

ment records
advised her to see an orthopedist;’° and June 5, 2014, treat
indicating lower back tenderness. (R 21)
, who
AU Schiro also observed that consultative examiner Dr. Eyassu
in December of
attempted to perform an orthopedic examination on Woods
Woods’s
2012, had difficulty testing Woods’s range of motion because
c” and “extremely
“movements appeared exaggeratedly slow and severely antalgi
reported that
limited due to very poor effort.” (R 21 (quoting R 605)) Dr. Eyassu
and motor
Woods exhibited very poor effort in responding to trigger point
l and
strength examinations. (Id.) Additionally, Dr. Eyassu had cervica
showed an
lumbrosacral x-rays performed on Woods. The lumbrosacral x-ray
showed
intact spine with no fracture or bony lesion and the cervical x-ray
an otherwise
minimal osteophyte formation at the C5-6 vertebrae level but
intact cervical spine. (R 21; seeR 612)
of a
AU Schiro next discussed Woods’s mental health record, consisting
601—603) Dr.
report by consultative psychiatric examiner Dr. Toichin. (See R
concentration
Toichin reported that Woods had mildly impaired attention and
goal-directed
but showed no evidence of psychosis and displayed a logical and
; see R 602—
thought process as well as adequate social functioning. (R 22—23
sed Woods with
603) AU Schiro also noted that, although Dr. Tolchin diagno

months,
ALl Schiro noted that Woods reported seeing Dr. Gandhi every three
primarily for
while the record suggests Woods sees Dr. Gandhi only once per year,
prescription refills and to have disability paperwork completed. (R 21)
10

12

Woods
depression secondary to pain, the record contains no evidence that
22_23)11
receives mental health care or takes psychotropic medications. (R
Schiro assigned weight to the medical opinion
Woods is
evidence as follows. To Dr. Gandhi’s opinion from August 2011 that
unable to work, the AU assigned “little weight” “due to significant
did afford
inconsistencies” in Dr. Gandhi’s records. (R 22)12 But, AU Schiro
sis of
weight to Dr. Gandhi’s more recent treatment records—and his diagno
Based on this record, AU

ce that
degenerative joint disorder in particular—in conjunction with eviden
orate
Woods is overweight, to determine that Woods’s RFC must incorp
g. (See R
stretching breaks and limitations on prolonged standing and walkin
23)
agency
AU Schiro also afforded some weight to the assessments of state
diabetes
medical consultants who limited Woods to a light RFC due to her
ent that
mellitus. (R 23) She likewise gave some weight to Dr. Eyassu’s assessm
sustained
Woods has limitations in bending, turning, twisting, heavy lifting,
ions in
pulling and pushing and prolonged walking, incorporating these limitat
to the RFC (Id.)
Schiro credited the reports of state agency psychological
only
consultants who considered Woods’s affective disorder non-severe and
Woods
mildly limiting, and gave “partial weight” to Dr. Toichin’s report that
shows a global assessment of functioning (“GAF”) score of 55—a score
Next, AU

consistent with moderate limitations. (R 23)
In contrast, AU Schiro accorded “little weight” to portions of Dr.
maintaining
Tolchin’s assessment in which he opined that Woods has trouble
evidence
attention and concentration. AU Schiro explained that she saw no
I note that Dr. Tolchin’s October 2012 consultative examination report states
that Woods “sees a therapist once a week since August 2012.” (R 395) I agree,
receives
however, that there is no evidence in the record to substantiate that Woods
therapy or any sort of psychiatric treatment.
period
12
Because Dr. Gandhi’s August 2011 opinion pre-dated the relevant time
of AU
and had already been evaluated by AU Lissek, AU Schiro quoted the portion
g 437))
Lissek’s 2011 decision that discredited Dr. Gandhi’s opinion. (R 22 (quotin R
11

13

,
that Woods is “unable to concentrate, persist, and keep pace with simple
mild
routine tasks,” and viewed Dr. Toichin’s clinical findings as showing “only
attention and concentration impairment.” (R 23) Accordingly, the ALT
that
concluded that Dr. Toichin was merely conjecturing when he reported
re
Woods demonstrates “psychiatric problems, which may significantly interfe
t of her
with the claimant’s ability to function on a daily basis.” (Id.) In suppor
conclusion, ALT Schiro reiterated Woods’s ability to independently perform
normal daily activities and her lack of mental health treatment. (Id.)
’s
ALT Schiro concluded, in summary, that little had changed in Woods
(R 20—
medical records since ALT Lissek denied her 2009 application for DIB.
l
21) In fact, ALT Schiro supposed, Woods “likely retains a greater residua
tion
functional capacity” now than she did during the 2009—2011 applica
process. (R 21)
In light of Woods’s RFC and based in part on the testimony of a
perform
vocational expert (“yE”), AU Schiro determined that Woods could not
waitress, or
her past relevant work as a customer service representative, biller,
retail sales clerk. (R 24—25)
Step 5
Because Woods suffers from limitations that impede her ability to
5. The
perform the full range of sedentary work, ALT Schiro proceeded to Step
ALT asked the VE to state whether there are jobs existing in the national
work
economy that a hypothetical individual with Woods’s age, education,
testified
experience, and RFC would be capable of performing. (R 25) The VE
that the hypothetical individual could hold the following representative
in the
occupations, all sedentary in nature and existing in significant numbers
national economy: eyeglass polisher (DOT 713.684-038); preparer (DOT
Accepting
700.687-062); and compact assembler (DOT 739.687). (R 25, 53—54)
this testimony, ALT Schiro found Woods “not disabled” under the SSA, §
29,
2 16(i), 223(d), and 1614(a)(3)(A), from November 10, 2011 through July
2014.

14

C. Woods’s Appeal and Analysis

Woods assigns five errors to AU Schiro’s analysis. First and most
Woods’s
critically, Woods says, Dr. Toichin’s psychiatric report casts doubt on
can
ability to perform simple repetitive tasks, which the RFC assumes she
incorporated
perform. (PU Br 10—12) Woods urges, relatedly, that when the VE
Woods
Dr. Toichin’s opinion into one version of the AU’s hypothetical—as,
work. (Id.)
argues, he was bound to do—the VE testified that Woods could not
the
Woods’s brief focuses almost exclusively on this first argument, as does
all
Commissioner’s. Second, Woods claims the AU failed to “combine
Woods
impairments or discuss medical equivalence” at Step 3 (Id.) Third,
evidence
complains that AU Schiro did not explain, again at Step 3, why the
says AU
does not support medical listings 1.02 and 1.04 (Id.) Fourth, Woods
Schiro did not assess fatigue and other complications of her “uncontrolled
n as
diabetes.” (Id.) Finally, Woods argues, AU Schiro described her decisio
n found
consistent with AU Lissek’s prior decision, but AU Lissek’s decisio
pain
Woods to suffer from severe fibromyalgia, fibroids, and chronic back
12) See
syndrome—impairments that AU Schiro did not consider severe. (Id.
Woods v. Colvin, 2013 WL 5730539, at *1.
1.

Dr. Toichin’s Opinion.

Woods’s first argument focuses on the following statement, which
n:
appears in the report of psychiatric consultative examiner Dr. Tolchi
With regard to the daily functioning of the claimant, she
is able to follow and understand simple directions and
instructions. However, she may lack the necessary
motivation to perform simple tasks. She appears to have
difficulty maintaining attention and concentration. She
will have difficulty learning new tasks and performing
complex tasks independently. She will need support to
maintain a regular schedule. Her difficulties appear
attributable to depression and anxiety. The results of
the present evaluation appear to be consistent with
psychiatric problems, which may significantly interfere
with claimant’s ability to function on a daily basis.
(R 603)
15

With emphasis on the last sentence in the above statement, Woods
thus AU
argues that no record evidence contradicts Dr. Toichin’s opinion and
Indeed,
Schiro’s reasons for affording it little weight are baseless. (P1 Br 10)
the record.
there is no alternative mental status or psychiatric evaluation in
to Dr. Toichin
But that is because, aside from Woods’s unsubstantiated report
record
that she attended biweekly outpatient therapy in 2012, there is no
lack of
evidence that she has ever received mental health treatment. The
to give full
directly conflicting evidence is not an automatic basis for an AU
as here, the
weight to otherwise shaky opinion evidence—particularly where,
l findings do
opinion is that of a non-treating physician, where objective clinica
with the
not support the opinion, and where the opinion is not consistent
record as a whole. See 20 C.F.R. 404. 1527(c)(2)—(4), 416.927(c)(2)—(4).
from
Woods submitted no treatment records related to her mental health
albeit with
the relevant November 2011 through July 2014 time period and,
This
assistance, she is able to perform many normal daily living activities.
on Dr.
evidence (and lack thereof) counsels against placing too much weight
.. may
Toichin’s ambiguous caution that Woods’s “psychiatric problems
.

(R 603)
significantly interfere with [her] ability to function on a daily basis.”
to
Even if I take Dr. Toichin’s caution at face value as Woods urges me
ial
do, I find that ALl Schiro adequately accounted for Woods’s potent
work,”
psychiatric problems in the RFC. The RFC limits Woods to “low stress
work
which entails “simple, routine tasks,” “only occasional changes in
ional
routines,” only “simple decision-making,” only non-collaborative “occas
19—20)
contact with coworkers and supervisors,” and “no public contact”. (R
But Woods argues that these limitations fall short, pointing out that
with Woods’s
when AU Schiro asked the VE whether a hypothetical individual
tions
characteristics and background could perform the representative occupa
io
under either of two additional scenarios, the VE replied that either scenar
in the
would preclude the hypothetical individual from sustaining any work
as
national economy. (P1 Br 11, 18—19; see R 55—56). Those scenarios are
in
follows: (1) the individual suffers pain and medication-related lapses
16

work day; and (2)
concentration and as a result is off-task for 15 percent of the
pain,
the individual is absent two or more days per month because of
that these
medication, and her overall condition. (R 55—56) Woods argues
l condition and
scenarios both reflect Dr. Toichin’s opinion and depict her actua
at an individual
therefore, the AU should have relied on the VE’s response—th
under these scenarios is incapable of working.
to afford
For the same reasons I find that AU Schiro was not required
not required to
controlling weight to Dr. Toichin’s opinions, I find that she was
ms and
further incorporate into the RFC Woods’s vague psychiatric sympto
d to pose to
limitations. Therefore, I also find that AU Schiro was not require
Accordingly, the
the VE either of the two alternative scenarios stated supra.
lling.
opinion the VE gave in response to those scenarios is not contro
to reflect all
The case law requires a hypothetical question posed to a VE
they are
of a claimant’s specific limitations—mental and physical—where
Bamhart, 312
supported by established medical evidence. See, e.g., Bums v.
medically
F.3d 113, 123 (3d Cir. 2002) (“Where there exists in the record
a hypothetical
undisputed evidence of specific impairments not included in

ered
question to a vocational expert, the expert’s response is not consid
(3d Cir.
substantial evidence.”); Rutherford z’. Bamhart, 399 F.3d 546, 554
expert every
2005) (“We do not require an AU to submit to the vocational
posed must
impairment alleged by a claimant. Instead... hypotheticals
must be
accurately portray the claimant’s impairments and that the expert
ed in the record.
given an opportunity to evaluate those impairments as contain
a claimant’s
the AU must accurately convey to the vocational expert all of
citations
credibly established limitations.” (internal quotation marks and
omitted)).
ed
I would not consider Dr. Tolchin’s opinion “medically undisput
, it
evidence of specific impairments.” Bums, 312 F.3d at 123. Rather
non-specific
constitutes internally ambivalent evidence of Woods’s moderate,
al source
mental limitations. For example, although Dr. Toichin’s “medic
17

re” with
statement” hints that Woods’s mental status may “significantly interfe
his
her “ability to function on a daily basis,” Dr. Tolchin also reports that
mental status examination of Woods showed that her “demeanor and
fluent and
responsiveness to questions was cooperative,” that her “speech was
directed,
productive,” that her “thought processes were logical, linear, and goal
she
with no evidence of hallucinations, delusions, or paranoia,” and that
602) Dr.
“demonstrated an adequate degree of abstract reasoning ability.” (R
mood, but
Toichin did describe Woods as having a tearful affect and dysphoric
attention,
he also described her as oriented and having only mildly impaired
concentration, and memory. (Id.)
by
“Limitations that are medically supported but are also contradicted
AU can
other evidence in the record may or may not be found credible—the
evidence for
choose to credit portions of the existing evidence but ‘cannot reject
g Mason
no reason or for the wrong reason”’ Rutherford, 399 F.3d at 554 (quotin
F.2d
v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993) and Cotter v. Harris, 642
on Dr.
700, 706 (3d Cir. 1981)). Here, other evidence in the record casts doubt
drive, shop,
Toichin’s “medical source statement”—namely, Woods’s ability to
money.
perform light cooking and cleaning, care for her daughter, and handle
While Woods requires her mother’s assistance to perform some of these
—
activities, the record indicates that it is Woods’s physical—not mental
impairments that demand this assistance. (See R 40—44, 586—89, 602)
n’s
Therefore, I would not say that AU Schiro’s assessment of Dr. Toichi
that
statement was unsupported or made for the wrong reason, and I find
Woods’s RFC sufficiently accommodates her mental status.
Medical Equivalence Analysis
2.
Despite the minimal briefing afforded to Woods’s four remaining
ve but
arguments, I find one of them persuasive and two of them non-dispositi
nevertheless worthy of attention on remand.
I most agree with Woods’s second argument that AUJ Schiro failed to
“combine all impairments or discuss medical equivalence.” (Br. 12) This
any
argument refers to Step 3, at which point, if the AU does not find that
18

single impairment meets those described in the Appendix 1 listings, the AU
must consider whether the claimant’s impairments in combination are
set
medically equivalent to one of the Appendix 1 impairments. The regulations
forth three ways in which an AU might find medical equivalence:
(1) (i) If you have an impairment that is described in appendix
1, but—
(A) You do not exhibit one or more of the findings
specified in the particular listing, or
(B) You exhibit all of the findings, but one or more of
the findings is not as severe as specified in the
particular listing,
(ii) We will find that your impairment is medically
equivalent to that listing if you have other findings
related to your impairment that are at least of equal
medical significance to the required criteria.
(2) If you have an impairment(s) that is not described in
appendix 1, we will compare your findings with those
for closely analogous listed impairments. If the
findings related to your impairment(s) are at least of
equal medical significance to those of a listed
impairment, we will find that your impairment(s) is
medically equivalent to the analogous listing.
(3) If you have a combination of impairments, no one of
which meets a listing (see § 404.1525(c)(3)), we will
compare your findings with those for closely analogous
listed impairments. If the findings related to your
impairments are at least of equal medical significance
to those of a listed impairment, we will find that your
combination of impairments is medically equivalent to
that listing.
20 C.F.R. § 404.1526.
With respect to medical equivalence, the U.S. Court of Appeals for the
Third Circuit has explained:
Although the claimant bears the burden of proving
that his impairments equal or meet those listed in
Appendix 1, if a claimant’s impairment does not match
one listed in Appendix 1, the AUJ is required to
perform a comparison between the claimant’s
impairment(s) and those listed in Appendix 1. 20
C.F.R. § 404.1526(b). This court has stated that it is
19

to identify the relevant
the AU’s “responsibility
listed impairment(s)” and” ‘develop the arguments
both for and against granting *152 benefits.” Burnett
v. Comm’r of Soc. Sec., 220 F.3d 112, 120 n. 2 (3d
Cir.2000) (quoting Sims v. Apfel, 530 U.S. 103, 111,
120 S.Ct. 2080, 147 L.Ed.2d 80 (2000)).
In
Torres u. Comm’r of Soc. Sec., 279 F. App’x 149, 151—52 (3d Cir. 2008).
combine [the
Torres, where the AU’s medical equivalence analysis “failed to
analogous
claimant’s] many medical impairments and compare them to
...

meaningfully
Appendix I listings, the court concluded that it had no way to
development of
review the AU’s decision and thus remanded the case for fuller
the record and explanation at Step 3. Id. at 152.
Here, AU Schiro explained why Woods’s physical impairments
” do not meet
individually and mental impairments “singly and in combination
r of
Appendix 1 listings. Woods does seem, however, to have a numbe
The AU never
impairments that would naturally have some cumulative effect.
nation are
considered whether all physical and mental impairments in combi
equivalence
equivalent to one of the Appendix 1 impairments. Her medical
nt does not
analysis consists entirely of the conclusory statement: “The claima
or medically
have an impairment or combination of impairments that meets
1].” (R 18) Cf
equals the severity of one of the listed impairments in [Appendix
54, at 9
Wright v. Comm’r of Soc. Sec., No. CV 15-3965 (ES), 2016 WL 58528
ination
(D.N.J. Oct. 4, 2016) (distinguishing an AU’s one-paragraph “comb
analysis” from the “one conclusory sentence” in Ton-es).
issue of
Neither Woods nor the Commissioner addresses in any detail the
lar Appendix 1
whether her combined impairments medically equal any particu
“meaningful
listing. Standing alone, the AU’s decision does not really permit
., 220 F.3d
judicial review” of that issue. Burnett v. Comm’r of Soc. Sec. Admin
CV 14-7736
112, 119 (3d Cir. 2000); see also Garcia v. Comm’r of Soc. Sec., No.
*5 (D.N.J. Mar. 28, 2017) (remanding where the
(ES), 2017 WL 1157863, at
ents,
AU’s combination analysis consisted of just a few conclusory statem
ments did
despite that she did consider why the claimant’s individual impair
20

Soc. Sec., No. 2: 15-CVnot meet Appendix 1 listings); Rossignol v. Comm’r of
2016) (remanding
00105 (CCC), 2016 WL 7130915, at *6 (D.N.J. Dec. 7,
irments individually,
because “although the AU addressed Plaintiffs five impa
). Remand is therefore
he did not adequately consider them in combination”
appropriate.
3, including an
On remand, the AU shall explain her findings at Step
tive joint disease of the
analysis of whether and why Woods’s diabetes, degenera
are or are not equivalent in
spine, and depression with anxiety, in combination,
severity to one of the impairments listed in Appendix 1.
Medical Listings 1.02 and 1.04
3.
ro failed to
Also with respect to Step 3, Woods complains that AU Schi
gs 1.02 and 1.04 (Id.) I
explain why the evidence does not support medical listin
listings at Step 3, but I
agree that AU Schiro omitted an analysis as to these
rd quite clearly does
3
find that this error was technical and harmless.’ The reco
ains no evidence
not satisfy the requirements of listings 1.02 and 1.04; it cont
or the spinal
of gross anatomical deformity or compromise of a nerve root
1.04. See pp. 6—7 &
cord—factors necessary for impairment listings 1.02 and
discuss later in her
nn.4—5, supra. Moreover, AU Schiro did consider and
g the condition of her
opinion what little evidence Woods submitted concernin
6 17—23)
spine and joints. (See R 2 1—22; see also R 604—608, 612,
thorough
Nevertheless, because I am already remanding for a more
better explain at Step
“medical equivalence” review, on remand the AU should
3 why listings 1.02 and 1.04 are not met.
4.

Evidence of Diabetes Complications

Schiro did not assess Woods’s fatigue and
disagree. At Step 4,
other complications of “uncontrolled diabetes.” (Br. 12) I
for diabetes
AU Schiro acknowledged that Woods sees Dr. Gandhi
Next, Woods argues that AU

Social Security
The Third Circuit has applied a harmless error rule in ruling on
conclude
(“We.
appeals. Rutherford v. Bamhart, 399 F.3d 546, 553 (3d Cir. 2005)
outcome of the
that a remand is not required here because it would not affect the
case.”).
13

.

21

.

lobin A1C
management, that her laboratory results show uncontrolled hemog
and
testing and glucose levels, and that Woods has complained of fatigue
AU properly
weakness. (R 21) Against these considerations, however, the
ency with
balanced the lack of evidence of diabetic complications, the infrequ
ts concerning
which Woods sees Dr. Gandhi, Dr. Gandhi’s equivocal statemen
living
Woods’s capacity to work, and Woods’s ability to handle many daily
rged her
activities. (R 2 1—22) I am satisfied that AU Schiro adequately discha
least at Step 4.
duty to consider Woods’s diabetes and alleged complications, at
diabetes
What concerns me more about the AU’s evaluation of Woods’s
rather than
evidence is that at Step 3, she considered Appendix 1 listing 9.08
issued her
listing 9.00. Listing 9.00 replaced listing 9.08 well before AU Schiro
here was again
decision. See n.6, supra. Although I think the AU’s oversight
’s diabetesharmless error, on remand, the AU should consider whether Woods
ers, under
related impairments meet or equal listing 9.00, Endocrine disord
current regulations.
5.

AU Lissek’s 2011 Decision

n
Finally, Woods seems to argue that because AU Lissek’s 2011 decisio
chronic back
found that Woods suffered from severe fibromyalgia, fibroids, and
in 2014—
pain syndrome—conditions that AU Schiro did not consider severe
Lissek’s prior
AU Schiro’s comment that her findings are consistent with AU
12; see R 433—
decision somehow renders AU Schiro’s decision improper. (Br.
that AU
40 (November 9, 2011 decision of AU Lissek)) For context, I note
Schiro concurs
Schiro’s decision refers to AU Lissek’s opinion twice: first, ALl
i’s assessment
with AU Lissek’s decision to afford little weight to Dr. Gandh
her
dated August 29, 2011, and second, she comments, generally, that
with AU
conclusion as to Woods’s non-disability and RFC is consistent
record. (R 20—
Lissek’s findings because little had changed in Woods’s medical
22)
Nothing in AU Schiro’s decision suggests she unduly relied on AU
s the record. The
Lissek’s decision or abdicated her own responsibility to asses
AU Lissek
fact that AU Schiro declined to make the same Step 2 findings as

22

makes little difference; both ALJs found Woods non-disabled. (If anything, it
n that
might have been improper if AU Schiro had adopted AU Lissek’s opinio
Woods suffers from severe fibromyalgia, fibroids, and chronic back pain
syndrome, because the substantial evidence supporting those conditions pre
dates the onset of disability that Woods currently alleges. Pre-onset (i.e., pre
November 2011) evidence would necessarily be given lesser weight in
determining Woods’s limitations. See Torres v. Comm’r of Soc. Sec., No. CV 146178 (JBS), 2015 WL 8328346, at *11 (D.N.J. Dec. 8, 2015); Winward v.
t
Comm’r Soc. Sec., 629 F. App’x 393, 394 (3d Cir. 2015) (defining the relevan
time period as beginning with the alleged onset of disability). Woods
acknowledges as much in her brief. (See Br. 19 n.2 (acknowledging it was “not
ber
technically an error” for AU Schiro not to mention records from a Decem
2009 psychiatric examination because it “portrays [Woods’s] mental status 2
years before the onset date claimed in the current application.”))). The record
evidence from November 2011 forward does not support a finding that Woods
suffers from severe fibromyalgia, fibroids, or chronic back pain syndrome. AU
Schiro’s general comment that her opinion is consistent with that of AU Lissek
cannot be used as a means to trap her into a ruling that is at odds with the
record. Accordingly, Woods’s final argument is without merit.
III.

CONCLUSION
For the foregoing reasons, AU

Schiro’s decision is REMANDED for

further proceedings. No view is expressed as to the AU’s ultimate decision, but
on remand
shall explain her findings at Step 3, including an analysis of
whether and why Woods’s diabetes, degenerative joint disease of the spine, and
y to
depression with anxiety, in combination, are or are not equivalent in severit
one of the impairments listed in Appendix 1;
(a) the AU

(b) the AU shall specifically explain at Step 3 why listings 1.02 and 1.04
are not met; and

23

nts
shall consider whether Woods’s diabetes-related impairme
regulations.
meet or equal listing 9.00, Endocrine disorders, under current
(c) the AU

An appropriate order accompanies this Opinion.
)

Dated: June 29, 2017

/

KEVIN MCNULTY
United States District Jud e

24