FAVORS v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge Kevin McNulty on 2/26/2019. (dam, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LAQUANDA FAVORS,
Plaintiff,
Civ. No. 18-234-KM
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

OPINION

Defendant.
KEVIN MCNULTY, U.S.D.J.:

Ms. Laquanda Favors brings this action pursuant to 42 U.S.C.

§ 405(g),

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 and XVI of the Social Security Act, 42 U.S.C.
Supplemental Security Income (“551”), 42 U.S.C.

§ 40 1-34, and

§ 1381.

The issue presented is whether the decision of the Administrative Law
Judge (“ALl’) to deny Favors’s application for DIB and SSI is supported by
substantial evidence. Favors argues that the AU improperly weighed the
various medical opinions in the record and reached contradictory conclusions.
For the reasons stated below, this Court affirms the AU’s decision.
Background

I.

Favors seeks to reverse the AU’s finding that she did not meet the Social
Security Act’s definition of disabled from April 15, 2012, the alleged onset date,
through March 9, 2017, the date of the AU’s decision. (R. 24).’
Citations to the record are abbreviated as follows:
Docket entry in this case;
=

1

“R.

—“

=

=

Administrative Record (DE 8) (The cited page numbers correspond to the
number found in the bottom right corner of the page for all DE 8
attachments);
Brief in Support of Plaintiff Favors (DE 11);
1

On September 12, 2013, Favors applied for DIB under Title II, alleging
that she suffered from bipolar disorder. (R. 79, 180-88). On April 9, 2014,
Favors applied for 551 under Title XVI, alleging a disability onset date of April
15, 2012. (R. 19 1-97). Her application was denied on February 4, 2014 (R. 7991), and upon reconsideration on October 14, 2014. (R. 92-123).
On January 6, 2017, Favors appeared before the ALT with a nonattorney representative and testified. (R. 11, 30, 32). Daniel Wolstein, a
vocational expert *CVEfl), also testified. (Id.). After the hearing, the ALT held the
record open for seven days to allow for the submission of additional medical
records, which Favors submitted and the ALT considered in rendering his
opinion. (1?. 11).
On March 9, 2017, the ALT issued a decision finding that Favors was not
disabled within the meaning of the Social Security Act. (1?. 11-24). The ALT
determined that Favors’s mental impairments (depression,

anxiety,

bipolar

disorder and personality disorder) were severe, but not of listing-level severity.
(R. 14-16). The ALT concluded that Favors, given her residual functional
capacity (“RFC”), was able to perform work existing in the national economy.
(R. 16-24).
Standard

II.

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), (3); 20 C.F.R.

§

416.905(a); see lug v.

Comm’r Soc. Sec., 570 F. App’x 262, 264 (3d Cir. 2014); Diazu. Comm’rof Soc.
Sec., 577 F.3d 500, 503 (3d Cir. 2009).

“SSABr.”

=

Social Security Administration Secretary’s Opposition Brief (DE 12).
2

A. The Five-Step Process and This Court’s Standard of Review
Under the authority of the Social Security Act, the Administration has
established a five-step evaluation process for determining whether a claimant
is entitled to benefits. 20 C.F.R.

§

404.1520, 416.920. 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 Three: 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 identifsr 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 (“REt”) to perform past
relevant work. Id.

§

404. 1520(e)—(q, 4 16.92O(e)—(fl. 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), 4 16.920(g); see

Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 1-92 (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

3

factual findings, this Court adheres to the ALl’s findings, as long as they are
supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C.

§ 405(g)). Where facts are disputed, this Court will

“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes

ii.

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.” Zirnsak u. 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).
When there is substantial evidence to support the ALl’s factual findings,
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. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comrn’r of Soc. Sec., 235 F. 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 AU’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett u. Comm’r of Soc.
Sec., 220 F.3d 112, 119-20 (3d Cir. 2000).
B. The AU’s Decision

The AU followed the five-step process in determining that Favors was
not disabled from April 15, 2012, the alleged onset date, through March 9,
2017, the date of the AU’s decision. The ALl’s findings may be summarized as
follows:

4

Step 1: At step one, the AU determined that Favors had not engaged in
substantial gainful activity in the relevant period. (1?. 13).
Step 2: At step two, the AU determined that Favors had the following
severe impairments: depression, anxiety, bipolar disorder, and personality
disorder. (R. 14).
Step 3: At step three, the AU determined that Favors did not have an
impairment, or combination of impairments, that met or medically equal the
severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1.
(R. 14-16). Under Section 12.00 of Appendix 1 (“Mental Disorders”), the AU
concluded that Favors’s impairments did not cause at least two “marked”
limitations, or one “extreme” limitation, under the Paragraph B criteria for
mental functioning. (Id.).
To satisfy the Paragraph B criteria, a claimant’s mental disorder must
result in an extreme limitation of one, or a marked limitation of two, of the four
Paragraph B areas of mental functioning. Of the four areas evaluated for
mental functioning, the AU found a marked limitation in only one area

—

interaction with others. (R. 15). The other three other areas of mental
functioning that are considered in evaluating an impairment are the claimant’s
ability to (1) understand, remember, or apply information; (2) concentrate,
persist, or maintain pace; and (3) adapt or manage oneself. The AU
determined that in those three areas, Favors had only moderate limitations. (I?.
14-15).
Step 4: At step four, the AU concluded that Favors had the residual
functional capacity (“RFC”) “to perform a full range of work at all exertional
levels but with the following nonexertional limitations: The claimant is able to
understand, remember and carry out simple instructions with only occasional
changes to essential job functions.” (1?. 16). The AU further determined that
Favors is “able to make simple work-related decisions.” (R. 16). The AU found
that Favors is able to occasionally interact with supervisors and coworkers, but
cannot work on a team or with other coworkers, and cannot work with the
public. (R. 17).
5

The AW also concluded that Favors was unable to perform past work,
which included work as a fast food manager or worker, waitress or cashier. (R.
22).
Step 5: At step five, the ALl considered Favors’s age (28), education

(completed high school), and work experience in conjunction with the MedicalVocational Guidelines. (R. 23). Relying on the testimony of the VE, Daniel
Wolstein, the ALl identified several representative unskilled jobs Favors could
perform despite her limitations: (1) cleaner housekeeper (Director of
Occupational Titles (“DOT”) #323.687-014); (2) sorter— agricultural products
(DOT #529.687-186); and (3) laundry worker (DOT #361.684-0 14). The ALl
also determined, based on expert’s testimony, that a significant number of
these jobs were available nationally. (R. 23-24).
Accordingly, the ALl concluded that Favors was not under a disability,
as defined in the Social Security Act, from April 15, 2012 through March 9,
2017. (R. 24).
III.

Discussion

Favors challenges the AU’s determination that she was not disabled
during the relevant period. In particular, Favors contends that the AU’s RFC
finding is not supported by substantial evidence. (PBr. at 18-23, 24-26). Favors
further argues that the AU improperly weighed the various medical opinions in
the record, a flaw that which infected the AU’s determinations at Step 4. (PBr.
at 23-24, 1?. 15).
A. Credibility Determination

Favors argues that the AU improperly dismissed her subjective
complaints and otherwise ignored evidence. (PBr. at 18-23). Favors challenges
the ALl’s finding that Favors’s statements concerning the intensity,
persistence, and limiting effects of her symptoms were inconsistent with the
records in evidence. (1?. 18; PBr. at 18-23).
RFC is an assessment of the most a claimant can do despite his or her
impairments. 20 C.F.R.

§

404.1545. To determine a claimant’s RFC, an AU

must engage in a two-step process: first, consider all of a claimant’s symptoms
6

that can reasonably be accepted as consistent with the objective medical
evidence, and second, determine how those symptoms affect the claimant’s
ability to work. 20 C.F.R.

§ 404.1529.

In evaluating a claimant’s symptoms for RFC purposes, the ALl must
“consider all [of the claimant’s] symptoms, including pain, and the extent to
which [the claimant’s] symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence.” 20 C.F.R.

§

4 16.929(a). However, a claimant’s statements about his or her
pain or other symptoms will not alone establish that [the claimant
is] disabled; there must be medical signs and laboratory findings
which show that [the claimant hasi a medical impairment(s) which
could reasonably be expected to produce the pain or other
symptoms alleged and which, when considered with all of the
evidence (including statements about the intensity and persistence
of [the claimant’s] pain or other symptoms which may reasonably
be accepted as consistent with the medical signs and laboratory
findings), would lead to a conclusion that [the claimant] is
disabled. In evaluating the intensity and persistence of [the
claimant’s] symptoms, including pain, [the AL) must] consider all
of the available evidence, including [the claimant’sl medical
history, the medical signs and laboratory findings and statements
about how [the claimant’s] symptoms affect [him or her].
Id. (alteration added); see Hartranfl u. Apfel, 181 F.3d 358, 362 (3d Cir. 1999)
(rejecting claimant’s argument that AL) failed to consider subjective symptoms
when AL) found that subjective symptoms were inconsistent with objective
medical evidence and claimant’s hearing testimony).
Once an underlying physical impairment has been shown, the AL) must
next evaluate the intensity and persistence of the claimant’s symptoms to
determine how they limit a claimant’s capacity for work. 20 C.F.R.

§

404. 1529(c)(1). In evaluating the intensity and persistence of those symptoms,
an AL) should consider all of the available evidence, including the claimant’s
medical history, the medical signs and laboratory findings, statements from the
claimant, and his or her treating or non-treating source, or statements from
other persons. Id.

7

When a claimant’s alleged symptoms suggest a greater level of
impairment than can be supported by the objective medical evidence alone, an
AW should consider the following factors to assess the credibility of a
claimant’s statements: (i) the extent of the claimant’s daily activities; (ii) the
location, duration, frequency, and intensity of the symptoms; (iii) precipitating
and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of
any medication; (v) treatment other than medication for the symptoms; (vi)
measures used to relieve pain or other symptoms; and (vii) other factors
concerning functional limitations and restrictions due to pain or other
symptoms. 20 C.F.R.

§

404.1529(c)(3).

It is true that the AW must consider all relevant evidence, including
subjective complaints, in determining the RFC. Fargnoli v. Massanari, 247 F.3d
34, 41 (3d Cir. 2001) (citing 20 C.F.R.

§

404.1545(a)). However, the claimant

retains the burden of supporting his or her alleged RFC limitations. Bowen v.
Yucked, 482 U.S. 137, 146 (1987); see also 20 C.F.R.

§

404.1545(a) (“In

general, you [the plaintiff] are responsible for providing the evidence we will use
to make a finding about your residual functional capacity.”).
An ALl may reject, or only partially credit, subjective complaints if they
are not credible in light of the other evidence of record. Schaudeck v. Comm’r of
Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999). Nonetheless, the AU’s credibility
determination “must contain specific reasons for the finding of credibility,
supported by the evidence in the case record.” See 20 C.F.R.

§

404.1529(b),

4 16.929(b).
In this case, the ALl properly articulated specific reasons for the
credibility findings, which were substantially supported by the evidence in the
record. The AU determined that Favors had a medically determinable
impairment that could reasonably be expected to cause the alleged symptoms.
However, the AU also found that her statements concerning the intensity,
persistence, and limiting effects of those symptoms were not fully credible in

8

light of the objective medical and other evidence in the record, which included
Favors’s own testimony, her course of treatment, and daily activities.
The AU explicitly considered Favors’s testimony and subjective
complaints. (SeeR. 17-18). The AU cited Favors’s testimony that she was able
to take care of her four children, prepare simple meals, engage in household
chores, visit family and friends, manage her finances, go shopping, and take
care of her personal hygiene. (R. 18). Favors was able to drive herself to the
consultative examination unaccompanied. (Id.). The AU recognized that this
testimony was consistent with a function report Favors had filled out. (See 1?.
253-60).
Favors argues that the AU nevertheless failed to recognize that “most of’
Favors’s symptoms “are by their very nature intermittent.” When her symptoms
are “active,” she says, she is unable to complete those daily activities without
help. (PBr. at 19).
In support of that argument, Favors cites evidence that the Division of
Youth and Family Services2 (“DYFS”) intermittently had a case open against
Favors, suggesting that she is (or is sometimes) unable to take care of her
children. (PBr. at 19-20 (citing R. 402, 445)). The record items cited by Favors
do not clarify the precise extent of DYFS’s involvement with the family. DYFS’s
involvement does not in itself suggest that Favors is unable to take care of her
children. Moreover, DYFS’s conclusions appear to suggest the opposite. DYFS
investigated allegations of abuse and neglect, and determined that the
allegations were unfounded. (R. 440). While it is true that the AU’s decision
does not explicitly refer to DYFS’s involvement, that omission is surely
harmless.
Various other record items establish Favors’s ability to take care of her
four young children as a primary caretaker, which includes taking care of an

On June 29, 2012, the Governor of New Jersey reorganized and renamed the
Division of Youth and Family Services to the Division of Child Protection and
Permanency. L. 2012, c. 16.

2

9

infant. (R. 18, 45-46, 63-64, 253, 270, 276, 456). The ALl also noted that there
was a significant period where Favors was not taking her prescribed
medications, which nonetheless did not impede her ability to take care of her

children. (R. 18, 451).
Next, Favors points out that, when her symptoms did “flare up,” she
received assistance from the State’s Bridgeway Program and from her daughter.
Favors claims that ALl ignored that Favors is unable to go to the store when
she is experiencing symptoms. (PBr. at 20-2 1). However, the record
demonstrates that the ALl explicitly considered the records from Bridgeway
and properly concluded that the records did not support more than a moderate
limitation. (See 1?. 16).
Favors relies heavily on the August 22, 2013 Bridgeway program intake
assessment, which noted that Favors “needed hands-on assistance” in certain
tasks. However, that same report noted that she was “self-sufficient” in a
majority of the areas that were assessed, which included her ability to engage
in personal hygiene, perform household chores, cook meals, shop, use public
transportation, and maintain her housing. (R. 16, 49493).3 Taking the entirety
of the report in consideration, I conclude that the ALl’s findings were
supported by substantial evidence in the record.

Favors also argues that the ALl failed to take into account her testimony
that her daughter helped her perform household chores when her symptoms
were active. (PBr. at 20). This testimony was contradicted by other
documentary evidence in the record, upon which the ALl was entitled to rely,
that suggested Favors was self-sufficient in this area. (R. 271, 49 1-92).
As to Favors’s ability to independently manage her finances (PBr. at 20),
the record amply supports the ALl’s finding. (See 1?. 272-74, 276). Favors
After this intake form was completed, Favors attended outpatient medicationmanagement at Union County Psychiatric Center (“UCPC”) Behavioral Healthcare from
approximately August 2013 through 2016 (R. 365-84, 442-59). After Favors began
receiving treatment and medication management, subsequent reports from Bridgeway
and UCPC were more positive than the intake form relied upon by Favors in this
appeal. (R. 365-84, 442-59).

3

10

argues that the record establishes at most that she received and spent state
benefits. (PBr. at 20). That is inaccurate. The record includes evidence that
Favors was able to pay her bills, shop in stores, use a checkbook and money
orders, and handle a savings account. (Id.).
Finally, the AW properly took into account evidence that Favors could
hold jobs that involved limited interactions with others, such as laundry
worker, agricultural sorter, and cleaner housekeeper. (PBr. at 22; R. 16-17, 8688, lO3). See Anderson ii. Comm’r of Soc. Sec., No. 07-1680, 2008 WL 619209,
at *9 (D.N.J. Mar. 4, 2008) (finding AW’s decision supported by substantial
evidence which accounted for plaintiffs ability to handle limited social
interactions where a vocational expert identified work in which working with
people is “not significant”). Favors does not present any substantive argument
that these identified jobs, which would involve limited social contact, fail to
accommodate her limitations as to interaction with others. (PBr. at 22).
In sum, the ALYs findings in these areas were supported by substantial
evidence in the record.
B. The AlA’s Consideration of Medical Evidence

Favors raises multiple arguments that the AW improperly weighed the
various medical opinions in the record. (PEr. at 23-29).
First, Favors argues that she should have been found disabled based on
the opinion of a treating nurse, Kathleen Waidron. (PBr. at 23-24). In
particular, Favors contends that the AW improperly failed to adopt Waldron’s
entire opinion into the RFC finding.
Second, Favors contends that various medical opinions supported a
finding that she had a weak memory and was unable to understand and

Favors testified that she was terminated from her last job because her mother
“wouldn’t help me watch the kids anymore so I then demoted myself to Crewrnember
and they thought that I was going to do everything I was doing when I was a manager
and they kept bothering me and I got into it with the manager.” (R. 55). At that time,
however, Favors was heavily drinking alcohol, and she was not yet in treatment. (I?.
393, 395).

4

11

remember simple instructions, which should have resulted in a “marked”
limitation, instead of “moderate” limitation, in the RFC finding. (PBr. at 25-27).
Third, Favors argues that the AW improperly rejected the opinions of
several treating physicians. (PBr. at 27-29).
I address those arguments in turn.
1. Waidron Opinion
Under 20 C.F.R.

§ 4 16.927(c), ALJs are required to weigh and evaluate

“every medical opinion.” Medical opinions are defined as “statements from
acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.” 20 C.F.R.

§ 416.927(a)(2). Accordingly, any diagnoses,

prognoses, and statements about the severity and nature of impairments
constitute medical opinions.
20 C.F.R.

§ 404.1502 lists the “acceptable medical sources” that can

provide evidence to establish an impairment. “Treating source means [an]
acceptable medical source who provides [the claimant] with medical treatment
or evaluation and who has, or has had, an ongoing treatment relationship with
[the claimant].” 20 C.F.R. § 416.927(a)(2) (alterations added). Controlling
weight can be given to “a treating source’s medical opinion on the issue(s) of
the nature and severity” of the claimant’s impairments if the medical opinion is
“well supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the]
record.” 20 C.F.R.

§ 416.927(c)(2).

“[Al reviewing court should not re-weigh the medical opinions of record
but should consider only whether the AW’s weighing of such opinions was
supported by substantial evidence.” Hutton v. Comm’r of Soc. Sec. Admin., 131
F. App5c 877, 880 (3d Cir. 2005) (citing Monsour Med. Ctr. v. Heckler, 806 F.3d
1185, 1190 (3d Cir. 1986)). “The AM—not treating or examining physicians or
State agency consultants—must make the ultimate disability and RFC

12

determinations.” Chandler v. Cornm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.
2011) (citing 20 C.F.R. § 404.1527(e)(1), 404.1546(c)).
Favors argues that the ALT credited the opinion of a nurse, Kathleen
Waidron, APN, but inconsistently failed to adopt that nurse’s opinion in its
entirety. The ALT adopted Waidron’s opinion that Favors was “seriously limited

but not precluded from understanding and remembering simple and short
instructions, maintaining attention for two-hour segments,” and being aware of
normal hazards. (1?. 20 (emphasis added), 478). The ALT also noted that “while
[Nurse Waldron] also opined the claimant would be absent from work due to
marked limits in concentrating, persistence, or maintaining pace and extreme
limits in social functioning, [the claimant] had a fair response to
pharmacotherapy and psychotherapy.” (P. 20). Favors argues that the ALT
should have also adopted Waldron’s conclusions that Favors would be absent
from work due to “marked” limitations in concentrating, persisting, or
maintaining pace.5 (R. 20).
The AL] evaluated and correctly noted that Ms. Waldron is not an
“acceptable medical source.” See 20 C.F.R. § 404.1502, 404.1513(a), (d),
416.902, 416.913(a); Rickabaughv. Ben-yhill, 271 F. Supp. 3d 721, 734 (D.
Del. 2017) (finding that a nurse practitioner was “not an ‘acceptable medical
source’ that can ‘establish

...

a medically determinable impairment.”’).6 That is

Favors also argues that the RFC finding fails to include that Favors requires
“independent management.” (PBr. at 25-25; see N. 20 (stating that Waidron’s opinion
is “consistent with the correlating treatment records which reflect that the claimant
requires independent management.” (citing N. 458 (“exhibit 9F”)). Favors believes that
this statement means “independent management” in the workplace, which should
have been reflected in the workplace restrictions by the vocational expert. (See PBr. at
25 n.7). That is incorrect. The ALT’s opinion and citation to the UCPC record note that,
due to the comorbidity of bipolar disorder and alcohol abuse, Favors required
independent management of these two issues. (N. 458).
S

For claims filed on or after March 27, 2017, a “Licensed Advanced Practice
Registered Nurse, or other licensed advanced practice nurse with another title” is
considered an acceptable medical source. 20 C.F.R. § 404.1502 (a)(7). On September
12, 2013, Favors applied for DIB; on April 9, 2014, Favors applied for SSI, well before
the change to the regulations.
13

not to say, however, that such evidence is wholly irrelevant. “[E]vidence from
nurse practitioners may be used to show ‘the severity of [an] impairment[] and
how it affects [a claimant’s] ability to work.tm Rickabaugh, 271 F. Supp. 3d at
734 (quoting 20 C.F.R.

§ 404.1513(d)) (alterations in original).

Waldron’s opinion therefore was not entitled to controlling weight; in fact,
the AU was not required to consider Waldron’s opinion at all. See Chandler,
667 F.3d at 36 1-62 (“the AU found persuasive and incorporated [a nurse
practitioner’s] opinion that Chandler cannot sit for more than thirty minutes at
a time, even though the AL] was not required to consider [nurse practitioner’s]
opinion at all because, as a nurse practitioner, she is not an ‘acceptable
medical source.”’). The AL] did consider Waldron’s opinion, however,
concluding that it was within the scope of her professional specialty and based
upon her treatment history with Favors, and gave it “great weight.” (R. 21).
Even a physician’s medical opinion, however, need not be accepted in its
entirety. See Wilkinson v. Comm’r Soc. Sec., 558 Fed. App’x 254, 256 (3d Cir.
2014) (rejecting claimant’s argument that AL], who gave doctor’s opinion
“significant weight,” could not decline to thereafter adopt any of that doctor’s
particular findings without explanation; holding that “[a]s an initial matter, no
rule or regulation compels an AL] to incorporate into an RFC every finding
made by a medical source simply because the AL] gives the source’s opinion as
a whole ‘significant’ weight.”); see also Thompson v. Comm’r of Soc. Sec., No. 152031, 2016 WL 2978610, at *4 (D.N.J. May 23, 2016) (holding same) (citing
Newsome v. Astrue, No. 11-1141, 2012 WL 2922717, at *6 (S.D. Ill. 2012)
(“[T]he fact that he gave ‘great weight’ to Dr. Naseer’s Opinion does not mean
that he was required to adopt it wholesale.”)).
Other substantial evidence fully supported the AU’s ultimate conclusion
that Favors had moderate, instead of marked, limitations in regards to
concentration, persistence, or maintaining pace. This area of mental function
refers to the abilities to focus attention on work activities and stay
on task at a sustained rate. Examples include: Initiating and
performing a task that you understand and know how to do;
14

working at an appropriate and consistent pace; completing tasks in
a timely manner; ignoring or avoiding distractions while working;
changing activities or work settings without being disruptive;
working close to or with others without interrupting or distracting
them; sustaining an ordinary routine and regular attendance at
work; and working a full day without needing more than the
allotted number or length of rest periods during the day.
20 C.F.R. Pt. 404, subpt. P, app. 1,

§ 12.O0(E)(3).

The AU determined that the UCPC treatment records reflected
concentration and attention that were impaired at times, but intact overall. (N.
15, 453, 456) The examinations of Drs. Gollin and Dr. Perdomo revealed fair
concentration and attention. (N. 15, 344, 363) Dr. Yalkowsky’s examination
demonstrated that although Favors had limited recall and appeared distracted,
she could nonetheless perform simple calculations. (N. 15, 362) Favors herself
reported that she was able to handle her finances (N. 15). The AU additionally
relied on Favors’s overall unremarkable clinical findings; her conservative and
routine treatment; and her daily activities (Tr. 18-19, 22).
The AU was not required to adopt all of Waldron’s opinion, despite
giving it great weight. In light of other evidence, some of which was also given
great weight, the AU was entitled to discount part of Waldron’s opinion. See
*4 (finding no error where AU did not accept
Thompson 2016 WL 2978610, at
physician’s opinion in its entirety where, “[a]lthough the AU gave [the
physician’s] opinion ‘great weight,’ the AU’s RFC determination was based on
multiple sources of evidence”).
In sum, I conclude that the AU’s decision not to accept Waidron’s
opinion that Favors would be absent from work due to a “marked” limitation in
concentrating, persisting, or maintaining pace was substantially supported by
the evidence in the record.
2. Understanding, Remembering, or Applying Information
Favors contends that the AU reached two contradictory findings
RFC determination contained “no restrictions at all in understanding,
remembering, or carrying out short and simple instructions,” but also
15

—

the

determined that the record “supports moderate limitations in... remembering
and carrying out simple instructions.” (PBr. at 26 (citing R. 16, 19)). Favors
further argues that the AU gave “great weight” to medical opinions that
supported finding a marked limitation in terms of Favors’s memory and ability
to understand and follow instructions, but nonetheless ascribed a moderate
limitation to this area of mental functioning. (PBr. at 26-27).
The Paragraph B criteria for “understanding, remembering, or applying
information” provides as follows:
This area of mental functioning refers to the abilities to learn,
recall, and use information to perform work activities. Examples
include: Understanding and learning terms, instructions,
procedures; following one- or two-step oral instructions to carry
out a task; describing work activity to someone else; asking and
answering questions and providing explanations; recognizing a
mistake and correcting it; identifying and solving problems;
sequencing multi-step activities; and using reason and judgment
to make work-related decisions.
20 C.F.R. pt. 404, subpt. P, app. 1,

§

12.O0(E)(1).

I do not read the AU’s decision as reaching two inconsistent results
regarding Favors’s ability to understand and recall information. The AU found
a moderate limitation in understanding, remembering, or applying information.
(R. 15). This finding was supported by substantial evidence. The AU reached
this determination based on Favors’s ability to understand and follow
instructions of moderate complexity at the consultative examination with Dr.
Perdomo. (1?. 15, 362). The AU noted that Favors’s treatment records reflect
that she could verbalize understanding of treatment plans and options; she
had good judgment and insight upon examination; and she testified that she
had been able to complete certificates in early childhood education and medical
assistant training after high school. (R. 15, 43).
This determination of a moderate limitation was also supported by the
opinions of the state agency physicians, Dr. Flaherty and Campion, as
conceded by Favors. (PBr. at 25 (“State agency physicians Dr. Sharon Flaherty
and Dr. Robert Campion both found that Ms. Favors had a moderate limitation
16

in the ability’ to understand and remember even very short and simple
instructions.” (citation omitted))).7 Similarly, Ms. Waidron indicated that Favors
was “seriously limited, but not precluded” in understanding and remembering
very short and simple instructions. See Wright v. Astrue, No. 8:1 1-cv-2439TLW-JDA, 2012 WL6947788, at *14 (D.S.C. Dec. 11,2012) (stating that “poor”
or seriously limited, but not precluded ability to maintain concentration and
attention was supportive of only moderate limitations in concentration), report
and recommendation adopted by 2013 WL 314757 (D.S.C. Jan 28, 2013).
The RFC finding reflects this moderate limitation by identifying “the
following nonexertional limitations: The claimant is able to understand,
remember and carry out simple instructions[.j” (R. 16). I do not read this
statement as imposing “no restrictions at all.” Moreover, the AW’s decision of
moderate limitation regarding this particular Paragraph B criteria was
supported by substantial evidence in the record.
3. AU’s Assessment of Opinion Evidence
Last, Favors alleges that the AW erred by assigning “little weight” to the
opinions of Dr. Daniel Gollin, Dr. Ernesto Perdomo, Cecilia Robin, APN, and
Dr. D. Patel. (PBr. at 27-29). Favors argues that these opinions support a
disability finding.
I note at the outset that the ALl considered the opinions of these
professionals but discounted their value for various reasons. When an AU
totally rejects a medical opinion, he or she is required to point to “contradictory
medical evidence.” Cunningham v. Comm’r of Soc. Sec., 507 Fed. App’x 111, 118
In Febmaiy 2014, Dr. Sharon Flaherty, Ph.D., a state agency psychologist,
opined that Favors had significant difficulty with people, particularly the public, and
opined that Plaintiff could perform simple, repetitive tasks. (R. 86-88). Dr. Flaherty
opinioned that Favors was not disabled (1?. 89-90).
In October 2014, Robert Campion, M.D., a state agency psychiatrist, affirmed
Dr. Flaherty’s opinion (R. 103). Dr. Campion explained that Plaintiff could perform
simple work and would be able to adapt to normal changes. (1?. 103). With respect to
Favors’s difficulties with social interactions, “she would be able to manage
satisfactorily” “in a work setting with limited contact with the public, coworkers, or
supervisors” (R. 103).
7

17

(3d Cir. 2012). Where, as here, the ALT is discounting, rather than rejecting,
opinion evidence, he or she must “consider all the evidence and give some
reason for discounting the evidence.” Plummer v. Apfel, 186 F.3d 422, 429 (3d
Cir. 1999) (emphasis added).
Cecilia Robin, APN, a nurse, completed a two-page form for the State of
New Jersey Division of Family Development in May of 2014, and opined that
Favors is disabled due to paranoia, hallucinations, mood swings, anger and
depression. (R. 21, 461). On that form, Robin also indicated that Favors’s
bipolar disorder resulted in an incapacity to comply with the WorkFirst NJ
(WFNJ) work requirement (R. 461). The ALT ascribed “little weight” to Robin’s
opinion.
First, the ALT correctly determined that Robin is not an acceptable
medical source. See supra. The ALT further properly rejected Robin’s
conclusory opinion that Favors is disabled. An opinion, even of a medical
professional, stating that a claimant is “disabled” or “unable to work” is not a
“medical opinion” and is not entitled controlling weight. Whether a claimant is
“disabled” within the meaning of the Act is an administrative determination
reserved for the Commissioner. See 20 C.F.R. § 404.1527(d)(1) (“[The
Commissioner] is responsible for making the determination or decision about
A statement
whether [a claimantj meets the statutory definition of disability.
...

by a medical source that [a claimant is] ‘disabled’ or ‘unable to work’ does not
mean that [the Commissioner] will determine that [a claimant is] disabled.”); 20
C.F.R.

§

404.1527(dfla) (“[The Commissioner] will not give any special

significance to the source of an opinion on issues reserved to the Commission
described in paragraph (d)(1).”); Chandler, 667 F.3d at 361.
The ALT also recognized the conclusory nature of the opinion, which
failed to specify particular functional limitations on Favors’s ability to work. (R.
*5 (E.D. Pa. Oct. 18, 2005)
21); see Kurilla v. Bamhart, 2005 WL 2704886, at
(ALT may properly reject opinion “on the basis of contradictory medical
evidence,’ or if the opinion is unsupported by medical data.tm (citation omitted)).

18

Accordingly, I reject Favors’s argument that the AU’s discussion of Robins was
“conclusory and not supportable.” (PBr. at 28).
I next address the opinion of Dr. D. Patel, a psychiatrist from UCPC who
completed a one-page “Verification of Disability” form on May 20, 2015. (1?.
462). On that form, Dr. Patel indicated that Favors is disabled pursuant to the
U.S. Department of Housing and Urban Development (“HUD9 regulations,
which defines a disability as “[a] person with a physical, mental, or emotional
impairment that is expected to be of a long continued and indefinite duration.”
(1?. 462).
I conclude that the AU properly gave this opinion little weight. As noted
above, whether an individual is disabled for purposes of SSI or DIB is an issue
reserved for the Commissioner. Moreover, in assessing this opinion and giving
it little weight, the AU recognized that Dr. Patel’s opinion was inconsistent
with the other evidence in the record that established that Favors had
moderate, not marked, limitations in understanding, remembering, and
applying information; concentrating, persisting, and maintaining pace; and
adapting and managing herself. (1?. 21); cf. Morales a Apfel, 225 F.3d 310, 318
(3d Cir. 2000) (providing that AU may reject treating physician’s opinion if
there is contradictory medical evidence in the record).
The AU also gave little weight to the opinion of Daniel Gollin, M.D., a
psychiatric consultant. (R. 21, 342-44), In March of 2013, Favors underwent a
psychiatric evaluation with Dr. Gollin, before she began treatment at UCPC
Behavioral Healthcare. (R. 342-44). Dr. Gollin assessed post-traumatic stress
disorder (VPSD), mood disorder, alcohol dependence, and borderline
personality disorder. (R. 344). Dr. Gollin opined that Favors “is not work-ready
at this time, although once medication is adjusted and symptoms stabilized,
she may become work-ready.” (1?. 344). Dr. Gollin prescribed Favors medication
and recommended therapy. (1?. 344).
In assessing Dr. Gollin’s opinion, the AU ascribed it little weight because
Dr. Gollin did not indicate permanently disabling limitations or accurately
describe her overall ability to function, (R. 21). See 20 C.F.R. § 4 16.909
19

(providing that to be disabling, an impairment must be expected to result in
death or last at least twelve continuous months in duration). Moreover, the ALT
explained that subsequent evidence showed that Favors, as predicted, had a
positive response to medication and treatment. IR. 21). Accordingly, the ALT
properly evaluated Dr. Gollin’s opinion, and explained his permissible reasons
for giving it little weight.
Finally, the ALT also ascribed “little weight” to the opinion of Ernesto
Perdomo, Ph.D. (R. 20). Dr. Perdomo provided a functional assessment of
Favors based on one interaction. (R. 20). Dr. Perdomo opined that Favors’s
depression and personality disorder “may affect her ability to function
effectively.” (1?. 20, 361-63).
The ALT recognized that Dr. Perdomo’s opinion was “vague and
conclusory,” and failed to provide a “specific function-by function analysis
regarding the claimant’s ability to perform work related activities.” (R. 20). The
ALT also recognized that Dr. Perdomo’s opinion was inconsistent with other
evidence in the record, which showed only moderate limitations. (Id.).
As recognized above, it is not the job of this Court to “re-weigh the
medical opinions of record.” Hafloi-i, 131 F. App’x at 880. This Court’s focus is
on whether the ALT’s weighing of “such opinions was supported by substantial
evidence.” Id. Based on the evidence in the record and the AU’s stated
reasons, the Court finds that the ALT’s determination of how much weight to
give the medical opinions was supported by substantial evidence in the record.

20

IV.

Conclusion

The AW’s decision was supported by substantial evidence in the record.
The AlA also properly provided his reasons for ascribing little weight to certain
medical opinions.
The AlA’s decision is therefore affirmed. An appropriate order
accompanies this Opinion.

Dated: Februaiy 26, 2018

H

L

KEVIN MCNULTY
United States District Judge

21