Filing 14

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

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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

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