BOYLE v. COMMISSIONER OF SOCIAL SECURITY

Filing 22

OPINION. Signed by Judge Freda L. Wolfson on 7/18/2014. (gxh)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
CAROLYN W. COLVIN 1
:
:
Defendant.
:
____________________________________ :
APRYL BOYLE

Case No. 12-4724 (FLW)
OPINION

WOLFSON, United States District Judge:
Plaintiff Apryl Boyle (“Plaintiff”), appeals from the final decision of the Commissioner of
Social Security (“Commissioner”), denying Plaintiff disability benefits under the Social Security
Act (the “Act”). Plaintiff contends that the record substantiates her claims that she is disabled, and
requires a conclusion that she is entitled to disability insurance benefits. After reviewing the
administrative record, this Court finds that the ALJ’s decision is not supported by substantial
evidence of the record, and accordingly, reverses the ALJ’s decision to deny Plaintiff disability
benefits and remands for further proceedings not inconsistent with this Opinion.
I.

OVERVIEW
A.

Procedural History
Plaintiff initially filed an application for Social Security Disability Benefits on October 10,

1

Plaintiff filed suit against Michael J. Astrue, the previous Commissioner of Social Security,
who has since been replaced by Carolyn W. Colvin as the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is substituted
as the defendant in this suit. See also 42 U.S.C § 405(g).
1

2008. AR 11. In this application, Plaintiff alleged that her disability began on August 1, 2004,
due to several psychiatric impairments, including, inter alia, depression and anxiety. AR 11, 13.
Plaintiff’s claims were first denied on May 18, 2009. AR 11. On August 19, 2010, Plaintiff
appeared at a hearing before an administrative law judge (ALJ), along with her husband, Ken
Boyle, and was represented by her attorney, Craig Voorhees, Esq. The ALJ subsequently issued
an unfavorable decision on September 2, 2010, denying Plaintiff benefits on the basis that Plaintiff
was not disabled under sections 216(i) and 223(d) of the Act during the relevant period. AR 1119. Plaintiff then petitioned the Social Security Appeals Council for review of the ALJ’s decision,
which denied her request for review on May 22, 2012, making the ALJ’s September 2, 2010
decision a final, appealable judgment. AR 1. Plaintiff then filed a Complaint in this Court on
August 7, 2012, appealing from the ALJ’s decision to deny Plaintiff benefits beginning from her
August 4, 2004 alleged disability onset date. See Dkt. No. 1.
B.

Background
Plaintiff, who is married and lives with her husband, was born in April 1977 and is currently

37 years old; she was 32 years old as of her date last insured, September 30, 2009. AR 14-15, 114,
131. Plaintiff has a high school education with additional training as a tractor-trailer driver. AR
32-33, 146-47. Plaintiff’s past relevant work includes, inter alia, being a school bus driver, school
bus aide, toll collector, and, most recently, truck driver. AR 18, 56-57, 150-61. Beginning in high
school, Plaintiff has had a history of depression, which grew increasingly severe until in or around
April 2001, Plaintiff lost her job. AR 13. From April 2001 through September 2005, Plaintiff
received intermittent treatment for depression and anxiety at Universal Behavioral Health Care
(“UBHC”). AR 13. In April 2006, Plaintiff began outpatient mental health treatment at Hunterdon
Medical Center (“HMC”), which continued through the end of the alleged disability period. AR

2

14. I detail the relevant findings of Plaintiff’s treating and evaluating medical professionals below.
C.

Review of Medical Evidence
Plaintiff received mental health treatment at UBHC from June 30, 2004 through September

28, 2005. AR 208-13. In her detailed medical history from UBHC, Plaintiff was noted to have a
long history of mental health care beginning when she was sixteen years old. AR 210. At UBHC,
Plaintiff was diagnosed with dysthymic disorder, attention deficit hyperactivity disorder
(“ADHD”), and learning disorder, not otherwise specified. AR 208. Additionally, during her time
at this UBHC, Plaintiff was evaluated for Asperger’s Syndrome; it is unclear from the record what
resulted from this evaluation. AR 213. Upon termination of her treatment at UBHC, Plaintiff was
assessed a psychological/cognitive condition of “good/no current problems identified” and socialinterpersonal/instrumental functioning condition of “good/no current problems identified.” AR
213.

Nevertheless, upon termination, Plaintiff’s prognosis was reported as “fair” and the

associated comments indicated: “Needs to follow up with Psych team to address issues.” AR 213.
Plaintiff was subsequently treated at HMC from April 25, 2006, through March 19, 2008
AR 232-46. As with UBHC, upon initial presentation, Plaintiff complained of lifelong depression,
poor sleep, poor concentration, and poor memory, as well as the belief that she had
Asperger’s/autism. AR 232. Upon mental status examination, she was noted to have pressured
speech, depressed mood, and constricted affect, as it was further noted that she was “tearful at
times especially about feeling that she doesn’t belong anywhere.” AR 234. At the same time, she
was also noted to have intact thought processes, no suicidal or homicidal ideation, as well as fair
judgment but impaired concentration. AR 234. Notes from a functional assessment indicate that,
with respect to coping mechanisms, Plaintiff “relies on her step-grandson’s and husband’s needs
to give her structure although she is struggling to keep up.” AR 234. Plaintiff was further described

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as having poor activities of daily living, social, and recreation skills. AR 234. At this time,
Plaintiff was diagnosed with depressive disorder, not otherwise specified, and given a global
assessment of functioning score (“GAF”) of 45, with the notation that her previous GAF was 60. 2
AR 235. Plaintiff’s prognosis upon intake at HMC was noted as “guarded,” and two to three weeks
of treatment at HMC was initially recommended. AR 235. During treatment, Plaintiff exhibited
clinical findings such as anxious and depressed mood, loud/pressured speech, impaired memory,
and fair/poor coping mechanisms, as well as fair judgment and insight during mental status
examination; her GAF ranged between 45 and 50 during the relevant time period. AR 234-42,
281. An HMC behavioral health assessment completed on September 11, 2009, revealed the
following: “slight progress” in Plaintiff’s present illness; Plaintiff “socializes with bro[ther] and
husb[and]’s postal friends”; Plaintiff’s appearance was well-groomed, attitude was cooperative,
speech was normal, mood was depressed and anxious, affect was appropriate, thought process was
intact, concentration was impaired, general knowledge was intact, judgment and insight were poor.
AR 279-282. At this time, Plaintiff was again diagnosed with depressive disorder, social phobia,
and Asperger’s, and assigned a GAF of 49. AR 282.
At the Commissioner’s request, Plaintiff was examined by Anju Rustagi, M.D., on
December 24, 2008. AR 255-57. After a detailed mental status examination, which included
clinical findings of depressed affect with self-reported suicidal thoughts, inability to complete
serial 7’s, and an inability to interpret abstractions, Plaintiff was diagnosed with major depression,
with a ruling out of mood disorder due to medical condition, and given a GAF of 55-60. AR 256-

2

A GAF score is a psychiatric metric, and a score between 41 and 50 indicates serious
symptoms or serious difficulty in social, occupational, or school functioning, with lower scores
indicating greater impairment. See, e.g., American Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders 34 (4th ed. text rev. 2000).
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57.
On January 13, 2009, a state medical consultant psychologist, Dr. Ina Weitzman, reviewed
Plaintiff’s medical records and noted that “Plaintiff has a long history of being in and out of psych
treatment with a variety of providers and a variety of diagnoses,” which include ADHD, dysthymic
disorder, and mood disorder, with fair prognosis. AR 274. Dr. Weitzman diagnosed Plaintiff with
major depression, and concluded that Plaintiff “is able to do simple, routine work in a low contact
setting. AR 274. These findings were reaffirmed on April 13, 2009, by state agency psychologist
Dr. Amy Brams. AR 276.
On July 15, 2010, one of Plaintiff’s treating psychiatrist, Dr. Padma Palvai, composed a
letter detailing Plaintiff’s treatment at HMC since April 2009. AR. 277. In this letter, Dr. Palvai
stated that Plaintiff had been diagnosed with pervasive developmental disorder, not otherwise
specified, social phobia, and major depressive disorder—recurrent, moderate. AR 277. Dr. Palvai
also outlined Plaintiff’s treatment which included individual psychotherapy as well as medication.
AR 277. In connection with these diagnoses, Dr. Palvai opined that Plaintiff has “significant
difficulties with her social skills” and “extreme social anxiety,” which make her functioning in a
job “extremely difficult.”

AR 277; see also AR 277 (opining that Plaintiff’s pervasive

developmental disorder and social anxiety “make[] it extremely difficult for her to function in any
job”).
D.

Testimonial Record
Plaintiff, her husband, and a vocational expert (“VE”) testified before the ALJ on August

19, 2010. AR 23-60.
1.

Plaintiff’s Testimony
Plaintiff testified that she previously used to work driving tractor-trailers within New

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Jersey, but stopped working that job in 2004, when she was terminated for having been involved
in too many accidents. See AR 28-31. Nevertheless, Plaintiff testified that she still holds a
commercial drivers’ license, and Plaintiff and her husband share driving a pickup truck. AR 3031. With respect to her home life, Plaintiff testified that she and her husband live alone, with their
pets, and that her daily activities include using her computer for reading fiction and the news, as
well as looking up the weather and playing card games. AR 31-32. Plaintiff testified that her
current diagnosis varied depending on the treating doctor, but included Asperger’s and
developmental disorder, not otherwise specified. AR 33. Plaintiff explained that her mental health
affected her “lifestyle,” and causes her difficulty when in a work setting. AR 33. In that
connection, Plaintiff testified that in her previous jobs she had been the “target for cruel coworkers
and supervisors” and that she had problems getting along with coworkers. AR 34. Outside of
work, Plaintiff described poor interactions with other people, but also stated that the reason she
did not have friends was due to “geography.” AR 34. Plaintiff further testified that she has crying
spells and, almost every day, difficulty falling asleep, which causes her to be “more or less in a
fog all day.” AR 36. Plaintiff stated that she has problems maintaining concentration and
following instructions, and gets tired easily doing household activities. AR 37-39. Plaintiff
testified that she is able to generally communicate effectively with others, but sometimes feels like
she falls behind in a conversation. AR 39. Because of this, Plaintiff testified that she has limited
social interaction. AR 39-40. Plaintiff stated that her mood fluctuates throughout the day, that she
gets frequently agitated, and that she is physically clumsy. AR 44.
With respect to her mental health treatment, Plaintiff testified that she was first treated for
depression in 1993, and was also receiving treatment in 2004, after she had stopped working as a
truck driver. See AR 34-35. Around this time, Plaintiff testified that was taking medication for

6

her depression, but the effects of the medication eventually wore off, leaving her feeling more
depressed than usual. AR 35. Plaintiff explained that she sees a psychiatrist about every three to
four months, and that she previously had been seeing a therapist but stopped because she did not
find it “very useful.” AR 41-42. Plaintiff also testified to having attended a support group for
people with Asperger’s for a brief period, but not regularly. AR 45.
In sum, Plaintiff testified that she did not feel capable of working because she has “tried
for years” but “just [has not] been successful at anything,” i.e., could not keep any one job for a
long period of time. AR 45-46. Plaintiff further testified that she currently did not feel that she
could maintain a routine schedule required for work, primarily because of her “energy levels” and
sleep issues. AR 46. Plaintiff also testified that her problems with her memory would affect her
job performance. AR 46.
2.

Plaintiff’s Husband’s Testimony
Plaintiff’s husband, Mr. Boyle, also testified at the hearing. Mr. Boyle testified that he had

known Plaintiff since 1999, married in 2004, and had been her supervisor at Plaintiff’s former
truck-driving job. AR 47, 51. Mr. Boyle explained that when he was Plaintiff’s supervisor, he
found Plaintiff to be overall a decent truck driver, but with some issues maneuvering. AR 48-49.
Mr. Boyle described Plaintiff’s day-to-day activities as “basically reading” and “sleeping,”
because Plaintiff lacks “motivation.” AR 49. Mr. Boyle testified that when he conversed with
Plaintiff, she would ramble, and she often had difficulty understanding sarcasm or common
expressions. See AR 52-53. Mr. Boyle noted further that “without supervision,” Plaintiff lacked
concentration and/or could get easily distracted in performing even basic tasks like reading. AR
53-54. With respect to Plaintiff’s sleeping patterns, Mr. Boyle testified that they were erratic.
3.

VE’s Testimony

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Lastly, the VE, Lee Levin, also testified at the hearing before the ALJ. After confirming
that he had reviewed the record, Mr. Levin first testified that Plaintiff’s past semi-skilled work was
as a (i) tractor-trailer driver, (ii) truck driver, (iii) school bus driver, (iv) minivan driver, and past
unskilled work was as a (i) toll collector, and (ii) school bus monitor. AR 56-57. The ALJ then
posed the following hypothetical to the VE:
[B]egin by assuming . . . an individual of this claimant’s age, education, and past
work history. Further assume that the individual is capable of performing a range
of work that does not involve detailed instructions but rather is confined to routine
one or two step tasks providing no more than limited contact with or proximity to
coworkers or public, and it should be a job where there are few work changes.
Could an individual . . . limited in this fashion do any of the jobs that Ms. Boyle
has done?
AR 57. The VE responded that such an individual could not perform any of Plaintiff’s previous
jobs. AR 57. The ALJ next asked the VE if such an individual could perform any other jobs in
the national economy, to which the VE responded that an individual could work (i) as a laundry
worker, with approximately 1,600 positions regionally and 67,000 positions nationally, (ii) at
assembly, with approximately 600 positions regionally and 400,000 positions nationally, and (iii)
at hand packing, with approximately 300 positions regionally and 120,000 positions nationally.
AR 57-58.
Following the ALJ’s questions, Plaintiff’s attorney asked the VE if a hypothetical
individual who had the limitations posed by the ALJ and also required unscheduled breaks or
absences, or who was unable to keep up with her work, would still be able to perform those jobs,
to which the VE responded in the negative. AR 58-59.
E.

The ALJ’s Findings
In a decision dated September 2, 2010, the ALJ initially determined that Plaintiff met the

insured status requirements of the Act from the alleged disability onset date through September
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30, 2009. AR 13. After reviewing the record and applying the relevant law, the ALJ determined
that Plaintiff was not under a disability within the meaning of the Act during the applicable
disability period. AR 19.
In reaching this conclusion, the ALJ applied the standard five-step sequential evaluation
process to determine if Plaintiff satisfied her burden of establishing disability. 3 AR 13-19. At step
one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged
disability onset date of August 1, 2004. AR 13.
At step two, the ALJ found that Plaintiff had the following severe impairment during this
period of time: organic brain disorder (and possible pervasive developmental disorder or PDD),
depression, and anxiety. AR 13.
At step three, the ALJ determined that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled one of the listed impairments under the SSA that
would automatically find Plaintiff disabled. AR 14-15. In so finding, the ALJ noted, inter alia,
that Plaintiff had moderate difficulties with respect to concentration, persistence, or pace,
stemming from her “ADHA [sic], a learning disorder, Asperger’s or PDD.” 4 AR 15.
At step four, the ALJ determined that Plaintiff had the RFC “to perform a full range of
work at all exertional levels, but with the following nonexertional limitations: she was unable to
perform detailed job instructions and was confined to routine 1-2 step tasks that involved limited
contact with and proximity to the public and coworkers and few changes in the work setting.” AR
15-16. The ALJ employed a two-step process whereby the ALJ first evaluated whether there was

3

See infra Part II.B.
The ALJ applied the “paragraph B” and “paragraph C” to Plaintiff’s claimed mental
impairments. Plaintiff does not dispute the adequacy of the ALJ’s analysis and thus I do not
discuss it further.
4

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“an underlying medically determinable physical or mental impairment . . . that could reasonably
be expected to produce the claimant’s pain or other symptoms.” AR 16. After determining that
the Plaintiff’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms,” the ALJ evaluated whether Plaintiff’s assertions as to the “intensity,
persistence and limiting effects” of her symptoms were credible when compared to the entire
record. AR 16. As to that issue, the ALJ found that Plaintiff’s statements regarding the intensity,
persistence and limiting effects of her symptoms were not credible because they were inconsistent
with Plaintiff’s medical history and RFC. AR 16.
In that regard, the ALJ first noted that although Plaintiff alleged that she had virtually no
social interaction, her self-reported medical records revealed that she socializes with her brother
and her husband’s friends, has visited a wide variety of different medical providers over the years,
and has maintained a long relationship with her husband. AR 17. The ALJ further noted that
Plaintiff’s claim that she is unmotivated to do anything to be contradicted by her admissions that
she reads daily, watches television, prepares dinners from scratch, and feeds, waters, and otherwise
cares for household pets. AR 17.
With respect to her mental health care, the ALJ determined that the evidence reflect that
Plaintiff has been “in and out” of care over the course of several years, and, notably, that when
Plaintiff received regular and consistent medication therapy—which has been the case since
September 2009—her mood is stable and less depressed, with an improvement in her sleep. AR
17. The ALJ noted that Plaintiff’s husband’s testimony supported this finding. AR 17. On the
other hand, the ALJ rejected the husband’s testimony that Plaintiff required a lot of “supervision”
as being unsupported by the longitudinal history. AR 17. The ALJ also noted that, even assuming
that Plaintiff had been in fact diagnosed with PDD and Asperger’s—which was unclear from the

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record—the record nevertheless showed that Plaintiff had been able to work independently in a
variety of semi-skilled jobs. AR 17. The ALJ further rejected, as being unsupported by the record
evidence, the opinion of Dr. Palvai, one of Plaintiff’s treating psychiatrists, that Plaintiff’s
limitations made it “extremely” difficult for her to perform any job. AR 17. Specifically, the ALJ
found that Dr. Palvai’s opinion conflicted with (i) Plaintiff’s high-level of functioning, including
her relative independence and ability to perform day-to-day activities, (ii) Plaintiff’s history of
holding a variety of jobs for a meaningful amount of time, (iii) medical records evaluating Plaintiff
with a high-level of functioning, and (iv) the contrary findings of the state agency consultant. AR
17. Indeed, the ALJ gave considerable weight to the state consultant’s findings that Plaintiff was
capable of performing simple, routine work in a low contact setting. AR 17.
In light of the RFC assessment and based on the testimony of the VE, the ALJ determined
that Plaintiff could not perform any of her past relevant work. AR 18. The ALJ next found that
Plaintiff was considered a “younger individual” under the applicable regulations. AR 18. Relying
on the testimony of the VE, the ALJ found that Plaintiff would be able to perform jobs as a laundry
worker, at assembly, and at hand packing, and that significant positions existed in these jobs both
regionally and nationally. AR 18-19. Based on these findings, the ALJ concluded, at step five,
that the Plaintiff was “not disabled” under the Act and denied Plaintiff disability insurance benefits.
AR 19.
II.

DISCUSSION

A.

Standard of Review
On a review of a final decision of the Commissioner, a district court “shall have power to

enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without remanding the

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cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.
2001). The Commissioner’s decisions regarding questions of fact are deemed conclusive on a
reviewing court if supported by “substantial evidence in the record.” 42 U.S.C. § 405(g); see
Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). While the court must examine the record in its
entirety for purposes of determining whether the Commissioner’s findings are supported by
substantial evidence, Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978), the standard is highly
deferential. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Indeed, “substantial evidence”
is defined as “more than a mere scintilla,” but less than a preponderance. McCrea v. Comm’r of
Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). “It means such relevant evidence as a reasonable
mind might accept as adequate.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). A reviewing
court is not “empowered to weigh the evidence or substitute its conclusions for those of the factfinder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). Accordingly, even if there is
contrary evidence in the record that would justify the opposite conclusion, the Commissioner’s
decision will be upheld if it is supported by the evidence. See Simmonds v. Heckler, 807 F.2d 54,
58 (3d Cir. 1986).
B.

Standard for Entitlement of Benefits
Disability insurance benefits may not be paid under the Act unless Plaintiff first meets the

statutory insured status requirements. See 42 U.S.C. § 423(c). Plaintiff must also demonstrate the
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. §
423(d)(1)(A); see Plummer, 186 F.3d at 427. An individual is not disabled unless “his physical or
mental impairment or impairments are of such severity that he is not only unable to do his previous

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work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
Eligibility for supplemental security income requires the same showing of disability. Id.; §
1382c(a)(3)(A)-(B).
The Act establishes a five-step sequential process for evaluation by the ALJ to determine
whether an individual is disabled. See 20 C.F.R. § 404.1520. First, the ALJ determines whether
the claimant has shown that he or she is not currently engaged in “substantial gainful activity.” Id.
§ 404.1520(a); see Bowen v. Yuckert, 482 U.S. 137, 146-47 n.5 (1987). If a claimant is presently
engaged in any form of substantial gainful activity, he or she is automatically denied disability
benefits. See 20 C.F.R. § 404.1520(b); see also Bowen, 482 U.S. at 140. Second, the ALJ
determines whether the claimant has demonstrated a “severe impairment” or “combination of
impairments” that significantly limits his physical or mental ability to do basic work activities. 20
C.F.R. § 404.1520(c); see Bowen, 482 U.S. at 146-47 n.5. Basic work activities are defined as
“the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). These activities
include physical functions such as “walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying or handling.” Id. A claimant who does not have a severe impairment is not considered
disabled. Id. § 404.1520(c); see Plummer, 186 F.3d at 428. Third, if the impairment is found to
be severe, the ALJ then determines whether the impairment meets or is equal to the impairments
listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (the “Impairment List”).

20 C.F.R. §

404.1520(a)(4)(iii). If the claimant demonstrates that his or her impairments are equal in severity
to, or meet those on the Impairment List, the claimant has satisfied his or her burden of proof and
is automatically entitled to benefits. See id. § 404.1520(d); see also Bowen, 482 U.S. at 146-47
n.5. If the specific impairment is not listed, the ALJ will consider in his or her decision the

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impairment that most closely satisfies those listed for purposes of deciding whether the impairment
is medically equivalent. See 20 C.F.R. § 404.1526(a). If there is more than one impairment, the
ALJ then must consider whether the combination of impairments is equal to any listed impairment.
Id. An impairment or combination of impairments is basically equivalent to a listed impairment
if there are medical findings equal in severity to all the criteria for the one most similar. Williams,
970 F.2d at 1186.
If the claimant is not conclusively disabled under the criteria set forth in the Impairment
List, step three is not satisfied, and the claimant must prove at step four whether he or she retains
the residual functional capacity to perform his or her past relevant work. 20 C.F.R. § 404.1520(e);
Bowen, 482 U.S. at 141. If the claimant is able to perform previous work, the claimant is
determined to not be disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e); Bowen, 482 U.S. at 141-42.
The claimant bears the burden of demonstrating an inability to return to the past relevant work.
Plummer, 186 F.3d at 428.
C.

Plaintiff’s Arguments
Plaintiff raises three arguments on appeal regarding the ALJ’s decision denying her

disability benefits. First, Plaintiff argues that the ALJ improperly rejected the opinions of
Plaintiff’s treating psychiatrist, Dr. Pavlai. Second, Plaintiff asserts that the ALJ erred by not
including in his decision a credibility finding with respect to Plaintiff’s husband’s testimony.
Lastly, Plaintiff contends that the ALJ erred by not including all of Plaintiff’s restrictions in the
hypothetical posed to the VE. See Pl. Br., 1. In response, the Commissioner argues that (i) the
ALJ did not outright reject Dr. Pavlai’s opinion, but only—and appropriately—rejected that
portion of the psychiatrist’s opinion that was not supported by the objective medical evidence; (ii)
the ALJ’s decision considered and rejected Plaintiffs husband’s testimony consistent with Third

14

Circuit law; and (iii) the ALJ’s hypothetical properly included all of Plaintiff’s limitations as
required by the Third Circuit. Overall, the Commissioner argues that the ALJ’s decision is based
on the substantial evidence in the record, and notes that Plaintiff bore the burden of proving her
limitations and that she was disabled, and that the Commissioner only had the burden of production
at step five to establish that sufficient jobs existed that Plaintiff could perform. I address each of
these challenges in turn.
1.

Dr. Pavlai’s Opinion
Plaintiff first contends the ALJ erred because he improperly rejected the opinion of one of

Plaintiff’s treating physicians, Dr. Pavlai, who should have been given controlling weight.
Effectively, Plaintiff is challenging the ALJ’s step four RFC determination, arguing that had the
ALJ considered Dr. Pavlai’s opinion, the RFC would include more restrictive limitations. Thus, I
first set forth the legal standard applicable to an ALJ’s RFC determination.
In making a residual functional capacity determination, the ALJ must consider all evidence
before him. See Plummer v. Apfel, 186 F.3d at 429; Doak v. Heckler, 790 F.2d 26, 29 (3d Cir.
1986). Although the ALJ may weigh the credibility of the evidence, he must give some indication
of the evidence which he rejects and his reason(s) for discounting such evidence. See Burnett v.
Comm’r of Social Sec. Admin., 220 F.3d at 121; Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
In Burnett, the Third Circuit determined that the ALJ had not met his responsibilities because he
“fail[ed] to consider and explain his reasons for discounting all of the pertinent evidence before
him in making his residual functional capacity determination.” 220 F.3d at 121. “In the absence
of such an indication, the reviewing court cannot tell if significant probative evidence was not
credited or simply ignored.” Cotter, 642 F.2d at 705. Similar to the medical reports, the ALJ must
also consider and weigh all of the non-medical evidence before him. See Van Horn v. Schweiker,

15

717 F.2d 871, 873 (3d Cir. 1983); Cotter, 642 F.2d at 707. A claimant’s allegations of pain and
other subjective symptoms are to be considered, see Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir.
1999) (citing 20 C.F.R. § 404.1529), and, if they are consistent with objective medical evidence
but the ALJ rejects such allegations, the ALJ must provide an explanation for doing so. See Van
Horn, 717 F.2d at 873.
Initially, I note that Plaintiff incorrectly characterizes the ALJ’s treatment of Dr. Pavlai’s
opinion. The ALJ did not reject Dr. Pavlai’s opinion wholesale; rather, the ALJ determined that
Dr. Pavlai’s opinion with respect to the severity of Plaintiff’s functional limitations was not
supported by the other objective record evidence, and thus was not credible. Additionally, the ALJ
found that the opinion of the state agency psychologist, Dr. Weitzman, which was confirmed by
Dr. Brams, to be in line with the record evidence, i.e., that Plaintiff could perform limited work
despite her mental health limitations. See AR 17 (citing AR 274, 276). Contrary to Plaintiff’s
assertion, it is wholly within the ALJ’s discretion to reject medical evidence, even that of a treating
physician, where the evidence is contracted by the record. See, e.g., Morales v. Apfel, 225 F.3d
310, 317 (3d Cir. 2000) (“Where, as here, the opinion of a treating physician conflicts with that of
a non-treating, non-examining physician, the ALJ may choose whom to credit . . . . In choosing
to reject the treating physician’s assessment, an ALJ . . . may reject a treating physician’s opinion
outright only on the basis of contradictory medical evidence . . . .” (Internal quotation marks
omitted.)); see also Brown v. Astrue, 649 F. App’x 193, 197 n.2 (3d Cir. 2011) (noting that the
“law is clear . . . that the opinion of a treating physician does not bind the ALJ on the issue of
functional capacity”). Because the ALJ rejected only a portion of Dr. Pavlai’s opinion, and did so
because it conflicted with the objective record medical evidence, there is no error. Accordingly,

16

this aspect of Plaintiff’s appeal is rejected. 5
2.

Husband’s Testimony
Plaintiff next argues that the ALJ erred because his decision did not include an explicit

credibility finding regarding Plaintiff’s husband’s testimony. In response, the Commissioner
contends that the ALJ’s decision adequately provided a basis for a reviewing court to determine
which portions of the husband’s testimony were credited and which were rejected, and for what
reason.
As noted, in making a determination on benefits, the ALJ must consider all evidence before
her. See Plummer v. Apfel, 186 F.3d at 429; Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986).
Here, the ALJ (i) cited the husband’s testimony regarding Plaintiff’s alleged disability, see AR 16,
(ii) accepted the husband’s testimony that was consistent with objective medical evidence, see AR
17, and (iii) rejected the husband’s testimony that was contracted by the medical evidence. See
AR 17 (“Although [Plaintiff’s husband] stated that [Plaintiff] needs a lot of supervision, this is not
supported by the longitudinal history . . . .”). I am more than satisfied that the ALJ addressed the
husband’s testimony and made credibility findings thereon. Contrary to Plaintiff’s suggestion,
there is no requirement that the ALJ make an explicit credibility finding—i.e., use the word
“credible”—in assessing witness testimony. All that is necessary is that the ALJ address the
evidence and explain why such evidence, in the ALJ’s opinion, is or is not credible; that is the case
here, and accordingly, there is no error in this aspect of the ALJ’s decision. See Van Horn v.

5

For similar reasons, Plaintiff’s contention that the ALJ erred by not adopting Dr. Pavlai’s
GAF assessment is also meritless. The ALJ relied on Dr. Weitzman’s determination, which was
based on the objective record evidence, that Plaintiff had a GAF that did not render Plaintiff
automatically disabled. See AR 17. Moreover, even a low GAF finding is not dispositive of a
claimant’s disability; rather, it is but one factor to be considered along with the other record
evidence. See, e.g., Gilroy v. Astrue, 351 F. App’x 714 (3d Cir. 2009); Garibay v. Comm’r of Soc.
Sec., 336 F. App’x 152 (3d Cir. 2009).
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Schweiker, 717 F.2d at 873-74 (explaining that ALJ simply must explain basis for
adopting/rejecting witness testimony). Thus, I reject this aspect of Plaintiff’s appeal.
3.

VE’s Hypothetical Question
Plaintiff lastly asserts that the ALJ erred during step five by failing to account for all of

Plaintiff’s psychiatric impairments in the hypothetical question posed to the VE. Notably, Plaintiff
does not argue that the ALJ failed to adequately convey to the VE the extent of Plaintiff’s mental
limitations as set forth in the RFC found by the ALJ; rather, Plaintiff contends that the ALJ failed
to incorporate a limitation that the ALJ found in step three, i.e., that Plaintiff had a moderate
limitation in maintaining concentration, persistence or pace. See AR 15. In response, the
Commissioner contends that the ALJ was only required to include in his hypothetical questioning
those limitations that made up the RFC, and not any other findings, and that, in any event, the
hypothetical questioning adequately conveyed to the VE Plaintiff’s limitation with respect to
maintaining concentration, persistence, or pace.
In order for the Court to find that a hypothetical question was based on substantial evidence,
the “hypothetical question must reflect all of a claimant’s impairments that are supported by the
record.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (emphasis added) (citing
Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984). “‘While the ALJ may proffer a variety of
assumptions to the expert, the vocational expert’s testimony concerning a claimant’s ability to
perform alternative employment may only be considered for purposes of determining disability if
the question accurately portrays the claimant’s individual physical and mental impairments.’”
Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (quoting Podedworny, 745 F.2d at 218); see
also Johnson v. Comm’r, 529 F.3d 198, 206 (3d Cir. 2008) (“[T]he hypotheticals posed must
‘accurately portray’ the claimant’s impairments and [ ] the expert must be given an opportunity to

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evaluate those impairments ‘as contained in the record.’” (Quoting Rutherford v. Barnhart, 399
F.3d 546, 554 (3d Cir. 2005))).
Here, the ALJ found that Plaintiff had “moderate difficulties” with concentration,
persistence, or pace, which resulted from her ADHD, Asperger’s and/or PDD.

AR 15.

Nevertheless, the sole hypothetical question posed to the VE by the ALJ contained no limitation
with respect to concentration, persistence, or pace. See AR 57. This is reversible error under
controlling Third Circuit law.
In Ramirez v. Barnhart, the Third Circuit reversed the decision of the ALJ where the ALJ
had found—in connection with step three but not in connection with the claimant’s RFC, as is the
case here—that the claimant “often” suffered deficiencies in concentration, persistence, or pace,
but failed to include that limitation in the hypothetical posed to the vocational expert. 372 F.3d
546, 554 (3d Cir. 2004). There, like here, the Commissioner argued that the ALJ’s limitation of
one- to two-step tasks sufficiently incorporated the concentration, persistence, or pace limitation.
Id. The Ramirez court rejected the Commissioner’s position, explaining that “a requirement that
a job be limited to one to two step tasks, as was stated in hypothetical relied upon by the ALJ, does
not adequately encompass a finding that [the claimant] often has deficiencies in concentration,
persistence, or pace.” Id. (internal quotation marks omitted). On that basis, the Ramirez court
concluded that the hypothetical questioning was deficient, and thus the ALJ’s decision was not
based on substantial evidence. Id. (citing Burns v. Barnhart, 312 F.3d at 123 (“Where there exists
in the record medically undisputed evidence of specific impairments not included in a hypothetical
question to a vocational expert, the expert’s response is not considered substantial evidence.”).
The Commissioner does not dispute that the ALJ did not include in his hypothetical
question any explicit limitation in line with his finding that Plaintiff had “moderate difficulties”

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with concentration, persistence, or pace. Rather, the Commissioner first argues that Ramirez’s
holding has been narrowed by the subsequent decision of McDonald v. Astrue, 293 F. App’x 941,
946-47 (3d Cir. 2008). I need not address this argument in much detail because regardless of
McDonald’s holding, that decision is not precedential. See Third Circuit Internal Operating
Procedure 5.7 (indicating that non-precedential “opinions are not regarded as precedents that bind
the court because they do not circulate to the full court before filing”); In re: Grand Jury
Investigation, 445 F.3d 266, 276 (3d Cir. 2006) (explaining that because the Third Circuit’s
Internal Operating Procedures do not regard non-precedential opinions as precedent binding upon
itself, these non-precedential opinions “are not precedents for the district courts of this circuit”).6
Thus, Ramirez remains the controlling law of this circuit, binding on this Court. 7
The Commissioner’s remaining argument is that the ALJ committed no error because the
hypothetical questioning adequately conveyed Plaintiff’s limitation, even if it did not do so
explicitly, and thus the ALJ did not violate Ramirez. I am not persuaded. Plaintiff contends that
the limitation posed to the VE—that Plaintiff could only perform one- to two-step tasks—
adequately conveyed the ALJ’s finding that the Plaintiff suffered moderate difficulties with
concentration, persistence, or pace. Yet, this is the exact same argument that the Ramirez court

6

Even though non-precedential opinions of the Third Circuit can be relied on as persuasive
authority, I do not find McDonald to be persuasive given that the facts in Ramirez align almost
identically with the facts in this case.
7
In that connection, the Commissioner argues that the relevant statutes and interpretive
rulings do not require an ALJ to include anything other than the RFC limitations in the hypothetical
questioning, citing 20 C.F.R.§ 404.1520a(d)(3) (providing that the RFC must be assessed
separately, after the ALJ uses the four functional areas to determine whether a claimant’s mental
impairments are severe or meet a listing), and SSR 96-8p (noting, in connection with the
Psychiatric Review Technique Form, that limitations identified in the four broad areas “are not an
RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3”). This
argument is unavailing because the Third Circuit’s holding in Ramirez, which is binding on this
Court, makes clear that in this jurisdiction, all of an ALJ’s findings must be conveyed to the
vocational expert. See Ramirez v. Barnhart, 372 F.3d at 552-54.
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rejected. Ramirez v. Barnhart, 372 F.3d at 554. Moreover, here, as in Ramirez, when the VE was
questioned specifically on a limitation based on concentration, persistence, or pace, he responded
that an individual with that limitation would not be able to perform the jobs he had previously
identified. See AR 58-59 (Q: “[I]f [Plaintiff] wasn’t able to keep up with the volume [of her job],
then she might have problems?” A: “Yeah, if you can’t get the work done that is expected of you,
then you won’t be able to have that job.” Q: “Maintain a consistency to perform that job?” A:
“Yes.”); see also Ramirez v. Barnhart, 372 F.3d at 554 (concluding that ALJ’s failure to include
finding of concentration, persistence, or pace limitation reversible error where “the vocational
expert testified that each of the jobs suitable for Ramirez (assembler, packer, and inspector) would
have daily production quotas and that Ramirez would have to maintain a certain degree of pace to
maintain those jobs.”). In light of the VE’s concession that Plaintiff would not be able to perform
the identified jobs if she could not “keep up” with the work, it necessarily cannot be said that the
ALJ’s one- to two-step limitation adequately conveyed a restriction related to concentration,
persistence, or pace.
Accordingly, I reject the Commissioner’s argument that the hypothetical questioning
adequately conveyed the ALJ’s finding that Plaintiff had moderate difficulties in maintaining
concentration, persistence or pace. Because the ALJ failed to include one of his factual findings
in the hypothetical questions posed to the VE, “the ALJ’s step five determination was not
supported by substantial evidence in the record” and the ALJ’s decision must be reversed, and the
matter remanded for further consideration. Ramirez v. Barnhart, 372 F.3d at 554.
CONCLUSION
For the reasons set forth above, the ALJ’s decision is REVERSED and this matter is
REMANDED for further proceedings not inconsistent with this Opinion.

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An appropriate Order shall follow.

Dated: July 18, 2014

/s/ Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.

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