RICHARDSON v. COMMISSIONER OF SOCIAL SECURITY
Filing
20
OPINION. Signed by Judge Kevin McNulty on 12/22/17. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MARIE D. RICHARDSON,
Plaintiff,
Civ. No. 16-8279 (KM)
V.
OPINION
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Ms. Marie D. Richardson brings this action pursuant to 45 U.S.C. 405(g)
and 1383(c)(3) to review a final decision of the Commissioner of Social Security
(“Commissioner”) denying her claims to Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C.
Supplemental Security Income (“SSI”), 42 U.S.C.
§ 40 1-34, and
§ 1381. For the reasons set
forth below, the decision of the Administrative Law Judge (“ALl’) is AFFIRMED.
I.
BACKGROUND
Ms. Richardson seeks to reverse a finding that she did not meet the
Social Security Act’s definition of disability from July 28, 2011 to May 29,
2015. (P1. Br. 1).’ Ms. Richardson applied for DIB and SSI on March 15, 2013.
(R. 29). In both applications, Ms. Richardson alleged disability beginning July
7, 2007. (R. 29). She alleges disabilities relating to her knees, lower back, and
1
Citations to the record are abbreviated as follows:
“I?.” = Administrative Record (ECF no. 8)
“P1. Br.” = Brief in Support of Plaintiff Marie D. Richardson (ECF no. 16)
1
mental health. (R. 32-40); (P1. Br. 2-6). These claims were denied initially on
May 31, 2013, and upon reconsideration on September 16, 2013. (R. 29, 14553).
On November 4, 2013, Ms. Richardson filed a written request for a
hearing. (R. 29). She appeared and testified at a hearing on March 31, 2015 in
Newark, New Jersey. (R. 29). The attendees at the hearing were AW Theresa
Merrill, vocational expert (“yE”) Tanya M. Edghill, claimant’s non-attorney
representative Mario Davila, and claimant’s attorney John Fort. (R. 29).
At the time of the hearing, Ms. Richardson requested to amend her
alleged onset date from July 7, 2007 to July 28, 2011. (R. 29). The AW granted
Ms. Richardson’s request. (R. 29). On May 29, 2015, The AW issued a decision
finding that Ms. Richardson was not disabled as defined by the Social Security
Act. (1?. 29-42).
On September 1, 2016, the Appeals Council denied Ms. Richardson’s
request for review, (R. 1-4), rendering the AW’s decision the final decision of
the Commissioner. Ms. Richardson then appealed to this Court, challenging
the ALl’s determination that she was not disabled from July 28, 2011 to May
29, 2015. (P1. Br. 2).
II.
DISCUSSION
To qualify for DIB or SSI, a claimant must meet income and resource
limitations and 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), 1382, 1382c(a)(3)(A),(B); 20 C.F.R.
§
416.905(a); see RUg v.
Comm’r Soc. Sec., 570 F. App5c 262, 264 (3d Cir. 2014); Diaz u. Comm’rof Soc.
Sec., 577 F.3d 500, 503 (3d Cir. 2009).
A. The 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
2
whether a claimant is entitled to benefits. 20 C.F.R.
§
404.1520, 4 16.920.
This Court’s review necessarily incorporates a determination of whether the
AW properly followed the five-step process prescribed by regulation. The steps
may be briefly summarized as follows:
Step One: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.
§
404.1520(b), 416.920(b). If not, move to step two.
Step Two: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.
§
404.1520(c), 416.920(c). If the
claimant has a severe impairment, move to step three.
Step Thiee: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt.
404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high
level to identify clear cases of disability without further analysis.) If so, the
claimant is automatically eligible to receive benefits; if not, move to step four.
Id.
§
404.1520(d), 4 16.920(d).
Step Four: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform past
relevant work. Id.
§
404.1520(e)—rn, 416.920(e)—(f). If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner to
demonstrate that the claimant, considering her age, education, work
experience, and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 C.F.R.
§
404.1520(g), 416.920(g); see
Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits
will be denied; if not, they will be awarded.
As to all legal issues, this Court conducts a plenary review. See
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AW’s findings, as long as they are
supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C.
§
405(g)). Where facts are disputed, this Court will
3
“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes
i’.
Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
omitted).
[IJn evaluating whether substantial evidence supports the AW’s
findings
leniency should be shown in establishing the claimant’s
disability, and
the Secretary’s responsibility to rebut it should
be strictly construed. Due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in this
administrative proceeding than is applicable in a typical suit in a
court of record where the adversary system prevails.
...
...
Reefer v. Bamhad, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks
and citations omitted). When there is substantial evidence to support the AW’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.
§
405(g)); Zimsak, 777 F.3d at 610-11 (“[W]e are
mindful that we must not substitute our own judgment for that of the fact
finder.”).
This Court may, under 42 U.S.C.
§
405(g), affirm, modify, or reverse the
Commissioner’s decision, or it may remand the matter to the Commissioner for
a rehearing. Podedwomy v. Han-is, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’r of Soc. Sec., 23SF. App’x 853, 865-66 (3d Cir. 2007).
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 Podedworny, 745 F.2d at 22 1-22. Remand is also proper
if the AW’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’rof Soc.
Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where
the AW’s findings are not the product of a complete review which “explicitly
4
weigh[s] all relevant, probative and available evidence” in the record. Adomo v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
B. The ALPs Decision
AL) Theresa Merrill followed the five-step process in determining that
Ms. Richardson was not disabled from July 28, 2011 (the alleged onset date) to
May 29, 2015 (the date of her hearing). Her findings may be summarized as
follows:
Step One: At step one, the AL) determined that Ms. Richardson had not
engaged in substantial gainful activity since July 28, 2011, the alleged onset
date. (R. 32).
Step Two: At step two, the AL) determined that Ms. Richardson had the
following severe impairments: degenerative joint disease of the knees
bilaterally, degenerative disc disease of the lumbar spine, obesity, adjustment
disorder, and bipolar disorder. (R. 32).
Step Three: At step three, the AL) found that Ms. Richardson did not
have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt.
P., app. 1 (R. 32).
Step Four: At step four, “[a]fter careful consideration of the entire
record,” the AL) found that Ms. Richardson had the following RFC:
[T]he claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except the claimant can occasionally push and pull with the
bilateral lower extremities; able to occasionally climb ramps and
stairs; occasionally balance or stoop; never climb ladders, ropes, or
scaffolds; never kneel, crouch, or crawl; able to frequently reach
overhead with the bilateral upper extremities and frequently push
and pull with the bilateral upper extremities; must avoid even
moderate exposure to hazards; would be off task 5 percent of the
work day because of pain and lapses in concentration; would be
absent one day per month because of the impairments and the
effects of medication; would be able to understand, remember, and
carry out simple instructions; would be able to adapt to routine
5
changes in the work place that are occasional and that are
gradually introduced.
(R. 34-35).
The AW also determined that Ms. Richardson was unable to perform any
past relevant work as a Material Handler (Dictionary of Occupational Titles
(“DOfl# 929.687-030). (R. 40). The demands of this job exceed her residual
functional capacity. (R. 40).
Step Five: At step five, the AW considered Ms. Richardson’s age,
education, work experience, and RFC, as well as the Medical-Vocational
Guidelines. (1?. 40-42). The Medical-Vocational Guidelines are tables that set
forth presumptions of whether significant numbers of jobs exist in the national
economy for a claimant. 20 C.F.R. Pt. 404, subpt. P, app. 2. These
presumptions vary based on a claimant’s age, education, work experience, and
work capability. Id. The AW determined that Ms. Richardson has been able to
perform jobs existing in significant numbers in the national economy since
July 28, 2011. (R. 4 1-42). Relying on the testimony of YE Tanya M. Edghill, the
ALl identified several representative jobs that Ms. Richardson could perform
despite her limitations: compact assembler (DOT# 739.687-066); preparer
(DOT# 700.687-062); and table worker (DOT# 739.687-182). According to the
YE, there are over 390,000 such jobs available nationally. (R. 41).
Therefore, the AU ultimately determined that Ms. Richardson was “not
disabled” under the Social Security Act. (R. 42).
C. Analysis of Ms. Richardson’s Appeal
Ms. Richardson challenges AW Merrill’s determination that she has not
been disabled since July 28, 2011. She claims that the AU committed errors
at steps two, three, four, and five. (P1. Br. 9-14).
At step two, Ms. Richardson argues that the AU omitted or ignored
severe impairments. (P1. Br. 14-17). At step three, Ms. Richardson contends
that the AW did not discuss medical equivalents, did not consider a
combination of impairments, and did not consider obesity. (P1. Br. 17-26). At
step four, Ms. Richardson argues that the RFC is “unexplained,” rejects the
6
opinion of treating physicians, ignores plaintiffs medically prescribed cane,
analyzes pain in “boilerplated fashion,” and “announces capacities without any
evidence recited in support.” (P1. Br. 26-41). At step five, Ms. Richardson
contends that the AU did not properly convey all of her credibly established
limitations to the yE. I will discuss the AU’s evaluation at each step.
1. The AU’s Step Two Evaluation
At step two, the AU found that Ms. Richardson’s severe impairments
included degenerative joint disease of both knees, degenerative disc disease of
the lumbar spine, obesity, adjustment disorder, and bipolar disorder. (R. 32).
Ms. Richardson argues that AU Merrill erred in step two by ignoring or
omitting severe impairments. (P1. Br. 14-17).
The AU noted that “[t]here are also references to other isolated
conditions such as a history of ovarian cysts, status post hysterectomy,
fibroids, GERD, etc.” (R. 32). Nonetheless, the AU found that these other
impairments were non-severe. (R. 32). “These impairments were diagnosed only
‘by history’ and not definitively.” (R. 32). Alternatively, the AU states that these
impairments were resolved with appropriate treatment or never lasted for
twelve continuous months. (R. 32). At the end of the step-two analysis, the AU
states that “[T]he undersigned as given full consideration to all impairments in
the record. Any impairment not specifically discussed in this decision is found
to be non-severe.” (R. 32).
Ms. Richardson argues that the AU did not properly consider all of her
impairments, and particularly hypertension, at this stage. (P1. Br. 16). She cites
a Social Security program policy statement providing that adjudicators must
carefully evaluate whether an impairment is severe:
A determination that an impairment(s) is not severe requires a
careful evaluation of the medical findings which describe the
impairment(s) and an informed judgment about its (their) limiting
effects on the individual’s physical and mental ability(ies) to
perform basic work activities
.
7
Titles H & XVI: Medical Impairments That Are Not Severe, SSR 85-28 (S.S.A.
1985). She argues that, without further analysis, the court cannot determine if
the findings are supported by substantial evidence in the record. (P1. Br. 1617).
Ms. Richardson’s arguments regarding the AW’s step-two analysis are
unavailing. First, the claimant has the burden of proof at step two to prove that
a disability is severe. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); see
also 20 C.F.R.
§
404.1512(a) (stating that the claimant must furnish medical
and other evidence that the adjudicator can use to reach conclusions about the
claimant’s medical impairments). Ms. Richardson did not furnish evidence to
show that her hypertension is severe—i.e., that it “significantly limits [her]
physical or mental ability to do basic work activities.” See 20 C.F.R.
§
404.1520(c). Ms. Richardson’s hearing testimony and the opinion of a
medical doctor, stating that her hypertension is “well controlled” on
medications, do not reflect a severe impairment. (R. 78-79, 431, 458). This is
also true regarding Ms. Richardson’s abdominal pain from ovarian cysts, which
says she feels “once in a blue moon.” (1?. 79). These impairments do not appear
to significantly limit her basic work activities and Ms. Richardson does not
meet her burden of proving that these impairments are severe.
Second, even if the AU’s determination that Ms. Richardson’s
hypertension or other impairments are not severe was in error, it would be a
harmless error because the AU erred on the side of leniency in considering
them at step four. When an AU finds that the claimant has at least one severe
impairment, omission of another at step two may be harmless error as long as
the impairment is considered regarding the RFC or would not affect the
outcome of the case. Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 145 n.2
(3d Cir. 2007); see Rutherford v. Bamhart, 399 F.3d 546, 552-53 (3d Cir. 2005).
Any error here would be harmless because the medical record does not indicate
that the omitted impairment impacts her ability to perform basic work
8
functions and because the AW discussed the impairment when considering the
RFC in any event.
In particular, the AU addressed Ms. Richardson’s hypertension at a later
stage of the analysis:
Regarding the claimant’s hypertension, on July 27, 2011,
Bernadette Cracchiolo, M.D. diagnosed the claimant with
hypertension, but indicated it was well controlled. (Ex.4F/49).
Nonetheless, the records show that the claimant’s condition is
chronic and that it requires daily medication. The notes from May
22, 2014 states that the claimant should take Amlodipine Besylate
daily for her hypertension. (Ex.9F/ 1). The records also show that
smoking can contribute to her hypertension. (Ex. W/9). The
undersigned further considers the claimant’s daily smoking habit
when assessing her hypertension as a severe impairment.
(testimony).
(R. 37). This medical opinion constitutes substantial evidence that Ms.
Richardson’s hypertension is not a severe impairment.
In the end, the AU’s determination that Ms. Richardson’s hypertension
was not a severe impairment was supported by substantial evidence. Even if
her step-two analysis was not fully developed, any error was harmless.
Substantial evidence and analysis of Ms. Richardson’s hypertension in
connection with her RFC establish that it does not significantly impact her
basic work functions. Given the standard of review, I will uphold the AU’s
step-two findings.
2.
The AU’s Step Three Evaluation
At step three, the AU found that Ms. Richardson does not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1
(R. 32). Ms. Richardson argues that the AU erred at step three by failing to
address medical equivalents, her combination of impairments, and obesity. (P1.
Br. 17-26).
9
i.
Discussion of Obesity
At step two, the AW found that Ms. Richardson’s obesity was a severe
impairment. (R. 32). However, the AW failed to consider the cumulative and
additional effects of Ms. Richardson’s obesity when determining if she qualified
for one of the listed impairments. The AW provides a one-paragraph discussion
of Ms. Richardson’s obesity at step three. The paragraph states in full:
The undersigned has given consideration to Social Security Ruling
02-ip, which instructs adjudicators to consider the effects of
obesity not only under the listings, but also when assessing a
claim at other steps of the sequential evaluation process, including
when assessing an individual’s residual functional capacity. When
obesity is identified as a medically determinable impairment,
consideration will be given to any functional limitations resulting
from the obesity in the residual functional capacity assessment in
addition to any limitations resulting from any other physical or
mental impairment identified.
(R. 33). This paragraph references 551? O2-lp, the then—controlling policy
guidance on obesity and listed impairments. However, this paragraph does not
satisfy the AW’s obligation to consider whether obesity, in conjunction with
other impairments, equals a listing.
Obesity is no longer a listed impairment, but AWs must “consider
jobesity’s effects when evaluating disability” and recognize that “the combined
effects of obesity with other impairments can be greater than the effects of each
of the impairments considered separately.” Titles II & XVI: Evaluation of
Obesity, 551? 02-lp (S.S.A. 2002). Specifically, “obesity may increase the
severity of coexisting or related impairments to the extent that the combination
of impairments meets the requirements of a listing.” Id.
Obesity is also mentioned as a potential exacerbating factor in several
listings. For instance, Listing 1.00, concerning musculoskeletal disorders,
states that:
Obesity is a medically determinable impairment that is often
associated with disturbance of the musculoskeletal system, and
disturbance of this system can be a major cause of disability in
individuals with obesity. The combined effects of obesity with
10
musculoskeletal impairments can be greater than the effects of
each of the impairments considered separately. Therefore, when
determining whether an individual with obesity has a listing-level
impairment or combination of impairments, and when assessing a
claim at other steps of the sequential evaluation process, including
when assessing an individual’s residual functional capacity,
adjudicators must consider any additional and cumulative effects
of obesity.
20 C.F.R. Pt. 404, subpt. P., app. 1,
¶ 1.OOQ.
The AW’s discussion of obesity as step three does not show sufficient
analysis. The AW notes that she “gives consideration to Social Security Ruling
O2-lp,”
but does not actually address whether Ms. Richardson’s obesity
compounds her other impairments so that her impairments meet or equal a
listed impairment. “[I]t is the ALT’s responsibility
...
to identify the relevant
listed impairment(s) and develop the arguments both for and against granting
benefits.” Torres v. Comm’r of Soc. Sec., 279 F. App’x 149, 151-52 (3d Cir. 2008)
(quoting Burnett u. Comm’r of Soc. Sec., 220 F.3d 112, 120 n.2 (3d Cir. 2000))
(internal quotations omitted); see also SSR 02-lp.
H.
Harmless Error
Nonetheless, Ms. Richardson bears the burden of proving that her
impairments equal or meet the listed impairments. She “does not identify
specific avenues for meeting or equaling specific listings that the ALT should
have considered but did not.” Holloman v. Comm’r Soc. Sec., 639 F. App’x 810,
814 (3d Cir. 2016). She makes a sterile claim of error, but offers no explanation
of how further analysis could have changed the outcome of her claim. See id.
“Ordinary harmless error review, in which the appellant bears the
burden to demonstrate harm, is applicable to administrative appeals.” Id.; see
Shinseki v. Sanders, 556 U.S. 396, 409 (2009). While a positive finding at step
three would have eliminated the need to proceed through steps four and five,
Ms. Richardson does not offer an explanation, based on the evidence of record,
of how she might have prevailed at step three if the AU’s analysis had been
more thorough. See Holloman, 639 F. App5c at 814-815 (finding harmless error
11
at step three because the appellant, who bears the burden to demonstrate
harm, does not offer “how Holloman might have prevailed at step three if the
AW’s analysis had been more thorough”); Rutherford v. Bamhart, 399 F.3d
546, 553 (3d Cir. 2005) (“Rutherford has not specified how that factor would
affect the five-step analysis undertaken by the AU, beyond an assertion that
her weight makes it more difficult for her to stand, walk and manipulate her
hands and fingers. That generalized response is not enough to require a
remand ....“).
Ultimately, the AJJ should have more closely examined the additional or
cumulative effects of Ms. Richardson’s obesity when determining, at step three,
whether her impairments equal or meet the listed impairments.2 However, Ms.
Richardson does not suggest how the outcome would have been different if the
AU had been more thorough. Given that the AU’s step-four evaluation is
supported by substantial evidence, any error at step three was harmless.
The AhJ’s Step Four Evaluation
3.
At step four, Ms. Richardson argues that the RFC is “unexplained,”
rejects the opinion of treating physicians, ignores plaintiffs medically
prescribed cane, analyzes pain in “boilerplate[j fashion,” and “announces
capacities without any evidence recited in support.” (P1. Br. 26-4 1). Ms.
Richardson specifically argues that (i) the AU erred in determining that she
can perform sedentary work, especially given her need to use a cane; (ii) the
AU did not fully credit her subjective complaints of physical pain; and (iii) the
AU did not appropriately address her mental limitations when determining the
RFC.
i.
Sedentary Work
Ms. Richardson argues that the AU erred in finding that she can
perform sedentary work, particularly because she needs to use a cane. (P1. Br.
It appears that the AU considered the effects of Ms. Richardson’s obesity at a
later stage. At step four, the AU “further limit[ed] the claimant to less than the full
range of sedentary considering the combined effect of her obesity with other severe
impairments” beyond the limitations suggested by Dr. Chopra, a state agency
physician. (R. 39).
2
12
33). Ms. Richardson’s treating physician, Dr. Kabiawu, advised that she use a
single-point cane to help her ambulate. (R. 497-98, 617). However, Dr.
Kabiawu’s analysis was a check mark on a preset form. (1?. 497-98, 617). Such
check-box forms are weak evidence at best. See Mason v. Shalala, 994 F.2d
1058, 1065 (3d Cir. 1993) (“Form reports in which a physician’s obligation is
only to check a box or fill in a blank are weak evidence at best.... [W]here these
so-called reports are unaccompanied by thorough written reports, their
reliability is suspect.” (internal quotation marks omitted)).
The AU identified several pieces of evidence to support the conclusion
that Ms. Richardson could perform certain sedentary work. The AU noted Ms.
Richardson’s testimony that she generally uses a cane, but sometimes does
not, because it makes her left leg hurt more. (R. 35, 66). Additionally, Dr.
Khurana, a state agency physician, determined that Ms. Richardson could
perform sedentary work. (R. 117-18). This could include standing or walking
(with normal breaks) for up to 2 hours, and sitting (with normal breaks) for 6
hours, in an 8-hour workday. (R. 117-18). Moreover, Dr. Chopra, another state
agency physician, found that Ms. Richardson could stand or walk with normal
breaks for about 2 hours and sit with normal breaks for about 6 hours in an 8hour workday. (N. 38).
Ms. Richardson argues that the AU did not make specific references to
the record in support of assessed limitations and, instead, substituted her own
judgment for the expertise of physicians with medical evidence. (P1. Br, 28).
However, the AU discussed Dr. Khurana and Dr. Chopra’s opinions and
adopted their limitations. (N. 38-39). The AU also discussed Dr. Kabiawu’s
opinion, gave it partial weight, and addressed particular reasons why she did
not adopt his opinion wholesale. (N. 38). For example, Dr. Kabiawu did not
provide any reasons or evidence to support his opinion that Ms. Richardson
would need to take unscheduled breaks every 30 minutes for at least an hour.
(N. 38). Given that two state agency physicians presented different opinions
and evidence, the AU was permitted to not fully credit Dr. Kabiawu’s
recommendations.
13
Accordingly, the AM assessed that Ms. Richardson could perform
sedentary work. (R. 34-35). This determination is supported by substantial
evidence from Dr. Khurana and Dr. Chopra’s medical opinions.
ii.
Subjective Complaints of Physical Pain
Ms. Richardson argues that the AM erred by not fully crediting her
subjective complaints of pain. (P1. Br. 34-36). The AM noted Ms. Richardson’s
statements that, without her medication “her pain would be at a 10 out of 10 in
severity where she would need to go to the hospital.” (R. 40). Ms. Richardson
admitted that she did not take her medication on the day of the hearing so she
could “be functional” at the hearing. (R. 36). Ms. Richardson argues that she
meant that large doses of codeine (Percocet) and muscle relaxers would not
allow her the mental clarity to testify. (P1. Br. 35-36). Nonetheless, despite not
taking her medication, Ms. Richardson was able to attend the hearing and
participate without going to the hospital. For this reason, among others, the
AM found that her subjective complaints of disabling pain were only partially
credible.
Ultimately, “[tjhe credibility determinations of an administrative judge
are virtually unreviewable on appeal.” Hoyman i-c Coluin, 606 F. App5c 678, 681
(3d Cir. 2015) (citing Bieher v. Dep’t oftheArmy, 287 F.3d 1358, 1364 (Fed.
Cir. 2002)). Credibility determinations are entitled to “great deference.”
Horodenski i-c Comm’r of Soc. Sec., 215 F. App’x 183, 188-89 (3d Cir. 2007)
(citing Atlantic Limousine, Inc. a NLRB, 243 F.3d 711, 718 (3d Cir. 2001)). What
is required overall is that the AM give the claimant’s testimony “serious
consideration,” state her reasons for accepting or discounting it, and make
“specific findings.” Rowan a Bamhart, 67 F. App5c 725, 729 (3d Cir. 2003).
Where this has been done, a reviewing court will defer to the AM’s credibility
determination.
Given conflicting evidence, the AM was entitled to conclude that Ms.
Richardson was overstating the extent of her pain symptoms.
14
iii.
Mental Limitations
The AlA found that Ms. Richardson has moderate difficulties with
concentration, persistence, or pace. (R. 33-34). Ms. Richardson’s RFC
incorporates several limitations regarding her mental condition:
[Ms. Richardson] would be off task 5 percent of the work day
because of pain and lapses in concentration; would be absent one
day per month because of the impairments and the effects of
medication; would be able to understand, remember, and carry out
simple instructions; would be able to adapt to routine changes in
the work place that are occasional and that are gradually
introduced.
(R. 34-35). Additionally, the RFC finds that Ms. Richardson must avoid even
moderate exposure to hazards because of side effects of medication. (R. 38).
Ms. Richardson argues that the AU erred by not properly including limitations
related to her mental health in the RFC and in the hypotheticals to the VS. (P1.
Br. 36-41).
She makes a comparison to Ramirez zc Bamhart, where the AU’s RFC
(and hypotheticals) did not address specific mental-health limitations. 372 F.3d
546 (3d Cir. 2004). In Ramirez, the AU found that the claimant “often” suffers
from “deficiencies of concentration, persistence, or pace resulting in a failure to
complete tasks in a timely manner (in work settings or elsewhere).” Id. at 549.
The AU included several limitations in the claimant’s RFC. She was limited to
sedentary work in a well-ventilated environment, with no exposure
to dust, fumes, pets, animals, chemicals, or temperature extremes;
occasional breaks necessary for the use of an inhaler or pump; no
more than simple one or two-step tasks; no travel outside the
workplace; and a reasonable opportunity to receive and make
personal telephone calls.
Id. at 554. The only limitations that related to the Ramirez claimant’s mental
impairments were limitations to simple tasks, the restriction on travel, and
The question of whether the AU incorporated mental-health-based limitations
into Ms. Richardson’s RFC significantly overlaps with whether the AU’s hypotheticals
to the VE addressed her mental-health concerns. This is because the AU read the
entire RFC to the VE and the VE% responses were based on the RFC. (R. 87-89).
15
phone privileges. These related to claimant’s anxiety disorder, which was
largely attributable to her “need to feel that she has to be reasonably protective
of her children.” Id. at 555. The RFC in Ramirez did not adequately incorporate
the claimant’s deficiencies in pace, which had been recognized by the AM. Id.
at 554. This was particularly important because the representative jobs
identified for the claimant (assembler, packer, inspector) would entail daily
production quotas that would require claimant to maintain a certain pace
throughout the day. Id. In Ramirez, the court found that the accommodations
in the RFC would not remedy the claimant’s deficiency in concentration and
pace, and that was the reason for remand. Id. at 555.
In this case, however, AM Merrill found that Ms. Richardson has “a
moderate limitation in concentration, persistence, or pace.” (R. 33-34).
Accordingly, the AM added appropriate limitations to the RFC regarding her
time off-task, absences, ability to perform only simple tasks, and a limited
ability to adapt to change. (R. 34-35). Thus this AM did not commit the error
attributed to the AM in Ramirez. 372 F.3d at 554. Moreover, this Circuit has
regularly found that a RFC limiting claimant to simple, unskilled work is
adequate to account for moderate limitations in concentration, persistence, and
pace. See, e.g., Parks v. Comm’r of Soc. Sec., 401 F. App’x 651, 655-56 (3d Cir.
2010); Menkes v. Astrije, 262 F. App’x 410, 4 12-13 (3d Cir. 2008); McDonald z.’.
Astrue, 293 F. App’x 941, 946-47 (3d Cir. 2008).
4.
The AU’s Step Five Evaluation
At step five, the AM considered Ms. Richardson’s age, education, work
experience, and RFC, as well as the Medical-Vocational Guidelines, and
determined that Ms. Richardson is able to perform other jobs existing in
significant numbers in the national economy. (R. 40-4 1). The AU relied on the
testimony of a VE to identify representative unskilled jobs that Ms. Richardson
could perform within the limitations of her RFC. (R. 4 1-42). Ms. Richardson
argues that the AU erred at step five by not properly conveying all of the
credibly established limitations to the VE. (P1. Br. 37).
16
This challenge, in many ways, duplicates Ms. Richardson’s challenge to
the RFC. The underlying argument is that the AU’s ultimate finding rests on
an RFC that overstated her abilities. The AU’s RFC determination, however,
was
supported by substantial evidence, as established in subsection II.C.3.
It is true of course that a hypothetical question posed to a VE must
reflect all of the claimant’s limitations that are supported by substantial
evidence, if the VE’s opinion is to be valid. See, e.g., Bums v. Bamhart, 312
F.3d 113, 123 (3d Cir. 2002) (“Where there exists in the record undisputed
evidence of specific impairments not included in a hypothetical question to a
vocational expert, the expert’s response is not considered substantial
evidence.”). That does not mean, however, that the VE must be asked to opine
on all limitations alleged by a claimant. See Rutherford a Bamhart, 399 F.3d
546, 554 (3d Cir. 2005) (“We do not require art AU to submit to the vocational
expert every impairment alleged by a claimant. Instead
...
hypotheticals posed
must ‘accurately portray’ the claimant’s impairments and that the expert must
be given an opportunity to evaluate those impairments
established
....
...
that are medically
[Thus, t]he AU must accurately convey to the vocational expert
all of claimant’s credibly established limitations.”).
At the hearing, the AU asked the VE to consider a hypothetical
individual with Ms. Richardson’s age, education, vocational history, and RFC.
(R. 87-88). The AU read the entire RFC to the yE. (Id.). Since the RFC is
supported by substantial evidence, the AU accurately portrayed Ms.
Richardson’s credibly established limitations to the yE. Therefore, the AU did
not err at step five.
III.
CONCLUSION
For the foregoing reasons, Ms. Richardson has failed to demonstrate that
the AU’s decision was not supported by substantial evidence. Under the
applicable standard of review, that is sufficient to require that I uphold the
AU’s denial of Ms. Richardson’s claims. The AU’s decision is thus AFFIRMED.
An appropriate order accompanies this opinion.
17
Dated: December 22, 2017
Jo
K*IN MCNULTY
United States District Judge
18
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