EICH v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
OPINION filed. Signed by Judge Freda L. Wolfson on 11/20/2018. (km)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
ASHLEY EICH,
:
:
Plaintiff,
:
Civil Action No. 17-5815
:
v.
:
:
OPINION
:
NANCY A. BERRYHILL,
:
Acting Commissioner of Social Security,
:
:
Defendant.
:
___________________________________ :
WOLFSON, United States District Judge:
Ashley Eich (“Eich” or “Plaintiff”), appeals from the final decision of the Acting
Commissioner of Social Security, Nancy A. Berryhill (“Defendant”) denying Plaintiff disability
benefits under Titles II and XVI of the Social Security Act (the “Act”). After reviewing the
Administrative Record, the Court finds that the Administrative Law Judge’s (“ALJ”) opinion
was based on substantial evidence and, accordingly, affirms the decision.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff was born on April 17, 1985, and currently lives in an apartment with her
husband and three cats. AR 27, 43. Although she has held various jobs, most recently as a dog
groomer at Petco, she not had fulltime employment since November of 2013. AR 357. Plaintiff
seeks disability benefits due to bipolar disorder, agoraphobia, anxiety, and depression, and has
alleged a variety of symptoms, including frequent panic attacks and severe agoraphobia.
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On December 31, 2013, Plaintiff protectively filed a Title II application for a period
of disability and disability insurance benefits. AR 61. Plaintiff also protectively filed a Title
XVI application for supplemental security income on January 16, 2014. AR 67. In both
applications, Plaintiff alleged disability beginning November 23, 2013. AR 66-67. These
claims were denied initially on May 16, 2014, AR 76, and upon reconsideration on
September 22, 2014. AR 101. Thereafter, Plaintiff filed a written request for hearing on
September 26, 2014. AR 136. On March 3, 2016, a hearing was held before ALJ Deborah
Mande. AR 36-65. On April 25, 2016, the ALJ issued a written decision affirming the denial
of Plaintiff’s benefits. AR 12-34.
Plaintiff contests several aspects of the ALJ’s decision. She argues that the ALJ 1) erred
in her designation of Plaintiff’s severe impairments; 2) erred in her analysis of the mental
Listings; 3) erred in her weighing of the opinion evidence of Plaintiff’s treating psychiatrist; 4)
erred in her assessment of Plaintiff’s credibility; and 5) posed an inaccurate hypothetical
question to the vocational expert (“VE”) at the hearing.
A. Medical Evidence
1. Hospital Records
Plaintiff has had a number of hospital visits since 2009; however, because Plaintiff
alleges onset of disability of November 23, 2013, the Court will only recount evidence after that
date. Plaintiff was admitted to St. Luke’s Warren hospital on June 5, 2014, reporting “severe
anxiety,” because her house was very noisy. AR 385. She admitted “wanting to end it b/c she
[wanted] the anxiety to stop.” AR 385. In a crisis assessment form, Plaintiff reported “severe
sensory overload” due to noisy neighbors that made her feel as if an “alien” would burst out of
her chest. AR 443-44. While hospitalized, Plaintiff reported light and sound sensitivity, AR 496,
and agoraphobia. AR 502. She attended group therapy, and was noted to be “friendly and
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pleasant,” though a disturbing video at one group session caused her to leave early. AR 478, 496,
502. On June 9, 2014, after medication adjustments, Plaintiff was discharged with a "Relapse
Prevention Plan" that included continuing her “trips to Barnes & Noble to make it even more
comfortable.” AR 400·401, 538.
At a return trip to the hospital in October 2014 due to depression symptoms, Plaintiff
reported her symptoms as “mild,” AR 694, and mental status examinations were normal, and she
was assigned a GAF score of 94.1 AR 693, 696.
In November 2014, Plaintiff was admitted to Hunterdon Hospital for four days due to
reported depression, suicidal ideation, and non-compliance with medication. AR 701, 739-41. At
intake, treating physician Mukesh Patel, M.D., assigned a GAF score of 20. AR 741 Plaintiff
reported that she had been seeing a cognitive behavioral therapist once or twice per week for the
past year . AR 701. Dr. Patel noted that Plaintiff had “not done very well” recently, “needing
hospitalizations at Warren Hospital.” AR 701. Dr. Patel remarked that Plaintiff had recently
discontinued her Abilify “because it caused increasing weight gain,” which led to “her
mood…plummeting with increasing depression and with increasing suicidal ideations of wanting
to take an overdose or cut herself.” AR 701. Patel noted that Plaintiff had reported sedative
effects with Topamax and Seroquel, and ineffective results with Effexor. AR 701. At Plaintiff’s
“GAF” stands for Global Assessment of Functioning." GAF scores are used by “mental health
clinicians and doctors to rate the social, occupational, and psychological functioning of adults.”
Irizarry v. Barnhart, 233 Fed. Appx. 189, 190 n. 1 (3d Cir. 2007). “A GAF score of 50 or below
indicates serious symptoms, while a GAF score of 51 through 60 indicates moderate symptoms.”
Rivera v. Astrue, 9 F. Supp. 3d 495, 504 (E.D. Pa. 2014) Although GAF scores have “fallen
somewhat into disfavor,” as the American Psychiatric Association abandoned the GAF scale in
the most recent edition of the DSM (“DSM-V”), they remain medical evidence that an ALJ must
consider. Nixon v. Colvin, 190 F. Supp. 3d 444, 447 (E.D. Pa. 2016).
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request, Dr. Patel started her on a course of Lexapro, which she “tolerated . . . quite well, and she
denied side effects from her medications.” AR 702. Plaintiff also “attended all the groups, milieu
and therapeutic meetings, and “she denied any suicidal ideations during this hospitalization.” AR
702, 713. Dr. Patel’s mental status examinations prior to discharge were normal, although the
doctor noted that Plaintiff had an anxious/depressed mood on one occasion, and she was
assigned a GAF score of between 40 and 50 at discharge AR 712, 715.
2. Dr. Hailing Zhang and Dr. Pradip Gupta
Plaintiff saw Hailing Zhang, M.D. for treatment for anxiety and agoraphobia in August
2012, and again in late 2013 and early 2014. AR 775-83. His findings were largely consistent
across sessions, and he noted that Plaintiff wanted to file for disability benefits. AR 776. He
found gloomy/worried mood, fair insight and judgment, good impulse control, limited
concentration, full orientation, goal-oriented thought process, stable affect, cooperative behavior,
and no delusions during a mental status examination. AR 776-77. He assessed bipolar disorder
and obsessive compulsive disorder, and assigned a GAF score of 55. AR 777.
In April 2014, Dr. Pradip Gupta, conducted an examination of Plaintiff at the behest of a
state agency. AR 357-59. Plaintiff reported prior diagnoses of bipolar disorder and generalized
anxiety disorder with panic attacks and agoraphobia, describing a history of PTSD, “avoiding
people’s contact,” intermittent paranoia, nightmares, and flashbacks. AR 357. Dr. Gupta rated
the accuracy of her personal history as “fair.” AR 357. Dr. Gupta’s mental status examination
revealed, inter alia, fair attitude, coherent/relevant speech, circumstantiality and lack of goal
direction of speech, decreased speech output, full alertness and orientation, decreased fund of
information, intact recent memory, fair remote memory, normal concentration and attention,
intact ability to perform simple calculations, blunted but appropriate affect, limited insight, and
cooperative attitude and behavior. AR 358-59. Plaintiff reported not generally driving or taking
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public transportation, but being able to cook and do light household chores, use her computer,
read and write, and play video games. AR 359. Dr. Gupta also opined that Plaintiff was not
competent to handle her own funds. AR 359. He diagnosed Plaintiff with bipolar disorder in a
depressed state, with possible psychosis, of moderate severity. AR 359. He further assessed a
history of polysubstance abuse. AR 359.
3. Kevin Kassick
Plaintiff underwent outpatient counseling with Kevin Kassick, LPC, LCADC, for nine
months between January and September 2014. AR 583-605, 617-26. During a January 2014
intake visit, Kassick recorded that Plaintiff had a history of anxiety, panic attacks, and
agoraphobia, and estimated the severity of Plaintiff’s impairments to be high based on Plaintiff’s
“description of interference with functioning” and “risk of morbidity.” AR 583. Plaintiff reported
being married, with a supportive partner, and Kassick found her to be intelligent, with “good
communicative skills, and [was] friendly, attentive, fully communicative, casually groomed, but
tense.” AR 583. He noted that she appeared anxious and her thought content was depressed. AR
584. Kassick performed a mental status examination, finding anxious but appropriate affect,
congruent mood, intact and logical associations, no suicidal ideations, fair insight and judgment,
and cooperative behavior. AR 584. His diagnosis was panic disorder and agoraphobia. AR 584.
Plaintiff returned every month until September 2014, and Kassick’s reports from these sessions
are consistent with the earlier notes, and findings on mental status examination are identical or
nearly identical to the first session. AR 588, 590, 592, 594, 596, 598, 600, 602, 604, 617, 619,
621, 623, 625. For instance, on July 9, 2014, Kassick described Plaintiff as “listless,” “unhappy,”
and “depressed,” AR 617, and on July 18, 2014, Kassick described Plaintiff as “flat,” “unhappy,”
“downcast,” and “depressed.” AR 619.
4. Julia Stahl
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Plaintiff subsequently visited Julia Stahl, LCSW, on six occasions between October 2014
and May 2015. AR 791-95. In October, 2014, Plaintiff reported symptoms of agoraphobia and
bipolar disorder, and stated she had ceased driving six months prior. AR 791. In November 2014,
Plaintiff attended another session with Stahl, and claimed difficulty leaving the house, stating
that she was able to leave for medical appointments and to visit Barnes & Noble with her
husband, which she considered a “safe place.” AR 792. Ms. Stahl’s mental status examination
found anxious appearance, but otherwise found her friendly, attentive, communicative, and wellgroomed. AR 792. Later the same month, Plaintiff reported that she did not experience
symptoms when two friends of her husband came to the house to play Dungeons and Dragons,
because she views these people as “safe.” AR 793. She reported good medication compliance.
AR 793. Ms. Stahl’s notes of examination are identical to the prior visit, noting that her self-care
and domestic skills were normal. AR 793. Subsequent notes from December 2014 and May 2015
and are consistent with the earlier notes. AR 794-95. Plaintiff told Stahl in December 2014 that
she was able to go to her mother’s house to groom her dog, but did not believe she was able to
work due to her agoraphobia. AR 794. Plaintiff did not return to Stahl until May 2015, when
Stahl attempted to discuss a plan for Plaintiff to return to work, but Plaintiff was not receptive to
the plan. AR 795.
5. Dr. Subhash Javia
In March 2014, Plaintiff commenced treatment with Dr. Subhash Javia, M.D. AR 613.
Between March 2014 and February 2016, Plaintiff visited Dr. Javia approximately once per
month. AR 610-15, 765-74. During an intake evaluation, Dr. Javia performed a mental status
examination, and he found normal judgment, thought content, average memory, logical thought
process, but impaired impulse control, concentration, and attention, as well as partially present
insight. AR 613. Plaintiff reported symptoms of depression, severe mood swings, anger, and
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agoraphobia, with a worsening of symptoms since November 2013. AR 613. At the initial
session, Plaintiff told Dr. Javia she was applying for disability. AR 613. She reported taking
Lamictal, Klonopin, and Zofran. AR 614. Dr. Javia assessed bipolar disorder and a history of
polysubstance abuse, and assigned a GAF score of 31. AR 31.
During subsequent visits in the spring of 2014, Plaintiff discussed her disability
application on multiple occasions, and told Dr. Javia that she was unable to work. AR 612.
Plaintiff told Dr. Javia that she felt like “somebody ripped off my skin” and was observed to be
moody, paranoid, and guarded. AR 612, 770. Plaintiff missed her early June 2014 appointment,
but returned at the end of the month, when she described her recent admission to St. Luke’s and
reported good responses with therapy. AR 612. Subsequent notes from 2014 through early 2016
are only partly legible, and do not contain findings on additional mental status examinations. AR
764-69. On August 19, 2014, Plaintiff told Dr. Javia that “Abilify was doing an incredible job.”
AR 769. Dr. Javia’s notes generally record consistent symptoms of depression, anxiety, and
agoraphobia, with some improvement noted in 2015 and 2016. AR 764-69. The January 2015
notes appear to contain a reference to Plaintiff working recently, but she reported that “[t]hey
terminated my job.” AR 767. In February 2015, Plaintiff told Dr. Javia that she “love[s]
Lexapro,” that she was able to drive two miles and was having “no panic attacks.” AR 767. In
March 2015, Plaintiff reported no recent panic attacks and that she was doing “good.” AR 767.
Plaintiff reported that despite using “noise absorbers” and ear plugs to block out external noises,
she was still depressed and had difficulty thinking at times. AR 763. Consequently, Dr. Javia
added Risperdal to her medications. AR 763. Dr. Javia also suggested that Plaintiff move due to
her fear of noise. AR 764. Plaintiff missed several appointments in 2015. AR 765-66. In January
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2016, Plaintiff reported that her holidays were “OK” and that she had visited her parents’ house
with her husband. AR 764.
Dr. Javia completed a medical source statement in March 2016, in which he listed
Plaintiff’s impairments as bipolar disorder and panic disorder. AR 785. He described Plaintiff as
“guarded,” and said Plaintiff could not work at a regular job due to her depression, anxiety, and
fear of crowds. AR 786, 789. Dr. Javia gave Plaintiff a rating of “poor to none” in every category
of work-related mental functioning, with the exceptions of Plaintiff’s abilities to make simple
work-related decisions or set realistic goals, which he rated as fair. AR 786-89.2
6. Agency Medical Experts
On May 16, 2014, Pamela Foley, Ph.D., reviewed Plaintiff’s medical record and prepared
a mental RFC assessment. AR 71-76. Foley found Plaintiff to have severe impairments of
affective disorders, substance addiction disorders, and anxiety disorders. AR 72. Comparing the
Specifically, Dr. Javia’s found that Plaintiff had poor to no ability in the following categories:
Poor to no ability to remember locations and work-like procedures
Poor to no ability to understand, remember, and carry out detailed or very
short and simple instructions
Poor to no ability to maintain attention and concentration for extended
periods (e.g. 2 hours or more at a time)
Poor to no ability to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances
Poor to no ability to sustain an ordinary routine without special supervision
Poor to no ability to work in coordination with or proximity to others
without being distracted by them
Poor to no ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods
Poor to no ability to interact appropriately with the general public
Poor to no ability to ask simple questions or request assistance
Poor to no ability to accept instructions and respond appropriately to
criticism from supervisors
Poor to no ability to respond appropriately to changes in the work setting
Poor to no ability to travel in unfamiliar places or use public transportation
AR 786-89.
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medical evidence against the “B” criteria of the Listings, she diagnosed the following: (1)
moderate restriction of activities of daily living; (2) moderate difficulties maintaining social
functioning; (3) moderate difficulties maintaining concentration/persistence/pace; and (4) no
repeated episodes of decompensation. AR 72. In her RFC assessment, Foley found moderate to
no limitations in all areas, except for a marked limitation in interacting with the general public.
AR 73-75. Foley wrote that “ADLs indicate that the claimant needs reminders for personal care
and medication, can prepare simple meals, clean, do laundry, drives but not always alone, shops
by computer, reads and plays video games but less motivated, socially anxious, gets along with
landlord but reports ‘much disdain for authority,’ has had difficulty at work due to in appropriate
[sic] behavior.” AR 75. She further reported that Plaintiff “is able to understand and follow
simple instructions, to sustain pace, persistence, concentration and attention to simple, repetitive
tasks for at least 2-hour segments during a normal workday, and to adequately relate and adapt in
low-contact work-like settings.” AR 75. Based on these findings, Dr. Foley concluded that
Plaintiff was “not disabled” during the relevant period. AR 75. On reconsideration in September
2014, Amy Brams, Ph.D., affirmed Dr. Foley’s RFC in all respects. AR 97-100.
B. Plaintiff’s Testimony Before ALJ
Plaintiff testified at the March 3, 2016 hearing before ALJ Mande. Plaintiff testified that
she graduated from high school and has technical training as a dog groomer. AR 43. She last
worked full-time in November 2013 as a dog groomer at Petco, and did some part-time dog
grooming for private clients in 2014. AR 43-45. She has prior work experience at Borders
performing customer service, working in the company café, and organizing books. AR 44. She
was terminated by Petco due to her anxiety issues and panic attacks. AR 45-47.
She testified that she has a driver’s license, but does not drive and does not take public
transportation. AR 43. She stated that, due to noise sensitivity, she normally stays in the bedroom
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of the apartment that she and her husband shared. AR 48. Her daily activities include watching
television, reading (which she enjoys “a lot”), and performing light housework, including
washing dishes, vacuuming, and cooking, during which she wears earplugs. AR 48. She testified
that she could not afford therapy, but, nonetheless, sees a psychiatrist once per month. AR 49.
She has a small group of online friends that she interacts with while playing World of Warcraft.
AR 50. She testified that even though the game is violent, it does not trigger panic attacks
because it is “fantasy based.” AR 57. She also has a Facebook account and an email account. AR
50. She goes to her mother’s house once or twice per month, where she enjoys playing with her
mother’s dog, and goes to her father’s house once every couple of months. AR 51. She pays bills
online. AR 52. She testified that she experiences panic attacks three to four times per week. AR
55. Her medications include Lamictal, Klonopin, Lexapro, Risperdal, and Zofran, as well as
vitamin D. AR 59.
C. Vocational Expert’s Testimony
At the hearing, the ALJ took the testimony of Daniel Rappucci, an impartial VE. AR 6065.. The ALJ asked the VE to assume a hypothetical individual who could perform work at all
exertional levels, but who could not have exposure to heights or hazards; who is limited to
routine, repetitive tasks; who must experience infrequent changes in the work setting; who can
have only occasional interaction with co-workers and supervisors; and no interaction with the
general public. AR 62. The VE testified that such an individual would not be able to perform
Plaintiff’s past relevant work, AR 62, but identified other jobs available in significant numbers in
the national economy to the hypothetical individual, including the representative occupations of
industrial cleaner, hand packager, housekeeper, and small parts assembler (ranging from medium
to light exertion). AR 62-63. The VE confirmed that his testimony was consistent with the
Dictionary of Occupational Titles (DOT). AR 63.
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D. ALJ’s Decision
ALJ Mande issued her decision on April 25, 2016. AR 15-29. At step two, she concluded
that Plaintiff had the severe medically determinable impairments of affective disorder, anxiety
disorder, and personality disorder. AR 17. At step three, she found that Plaintiff’s impairments
did not meet or equal one of the listed impairments. AR 18-20. At step four, the ALJ found that
Plaintiff had the RFC for a range of work at all exertional levels, with limitations designed to
address her mental symptoms. AR 20-27. With the assistance of the testimony of the VE, the
ALJ concluded that Plaintiff could not perform her past relevant work as a dog groomer and
sales attendant. AR 27. At step five, and again in consultation with the VE, the ALJ determined
that Plaintiff retained the RFC to perform a range of jobs that exist in significant numbers in the
national economy, including the representative occupations of industrial cleaner, hand packager,
housekeeper, and small products assembler. AR 27-28. Therefore, the ALJ found that Plaintiff
was not disabled from November 23, 2013 through the date of her decision. AR 28.
II.
STANDARD OF REVIEW
On a review of a final decision of the Commissioner of the Social Security
Administration, 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 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
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(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 fact-finder.” Williams v. Sullivan, 970 F.2d 1178,
1182 (3d Cir. 1992), cert. denied, 507 U.S. 924 (1993). 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).
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 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. at § 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.”
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Id. at § 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 her 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. at § 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. at §
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 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.
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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” (“RFC”) 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. Finally, if it is determined that the claimant is no
longer able to perform his or her previous work, the burden of production then shifts to the
Commissioner to show, at step five, that the “claimant is able to perform work available in the
national economy.” Bowen, 482 U.S. at 146-47 n.5; Plummer, 186 F.3d at 428. This step
requires the ALJ to consider the claimant’s residual functional capacity, age, education, and past
work experience. 20 C.F.R. § 404.1520(f). The ALJ must analyze the cumulative effect of all
the claimant’s impairments in determining whether the claimant is capable of performing work
and not disabled. Id.
III.
DISCUSSION
Plaintiff challenges several aspects of the ALJ’s decision, and generally asserts that the
ALJ incorrectly applied the law and failed to rely on substantial evidence to find that Plaintiff did
not meet the Act’s definition of disability. Specifically, Plaintiff asserts that: (1) the ALJ erred at
step two in designating Plaintiff’s severe mental impairments; (2) the ALJ incorrectly found at
step three that Plaintiff’s mental impairments did not meet or medically equal a listed
impairment; (3) the ALJ wrongly weighed the opinion evidence of Plaintiff’s treating physician;
(4) the ALJ’s assessment of Plaintiff’s subjective complaints was not supported by substantial
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evidence; and (5) the ALJ posed a hypothetical inquiry of the vocational expert (VE) that did not
include all of Plaintiff’s limitations.
A. The ALJ’s Identification of Plaintiff’s Severe Impairments
Plaintiff argues that the ALJ erred, at step two, by not properly identifying all of her
severe impairments. At step two, 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).
Specifically, Plaintiff now asserts that she suffers from panic disorder with agoraphobia
and bipolar disorder, which the ALJ did not find to be among Plaintiff’s severe impairments.
This argument is unavailing. The ALJ found that Plaintiff had three severe mental impairments:
affective disorder, anxiety disorder, and personality disorder. Indeed, affective disorder, in fact,
encompasses bipolar disorder,3 and panic disorder is a type of anxiety disorder.4 Further, even if
these supposedly ignored disorders were not encompassed within the impairments that the ALJ
found, any failure to credit these impairments would be harmless because, as discussed below,
Plaintiff did not satisfy her burden of demonstrating that any specific impairment, or a
combination of impairments, equals all of the criteria of a listed impairment. See Gullace v.
Colvin, No. 15-7630, 2017 WL 714356, at *10 (D.N.J. Feb. 23, 2017) (citing Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)) (noting that a failure to identify an impairment as
severe is harmless unless the attacking party can “affirmatively identify evidence that the
impairment imposes additional limitations on his or her functional capabilities”).
B. The ALJ’s Finding that a Listing Was Not Met or Equaled
3
See DSM-5 and Psychotic and Mood Disorders, THE JOURNAL OF THE AMERICAN ACADEMY OF
PSYCHIATRY AND THE LAW, 42-2 (2014), available at http://jaapl.org/content/42/2/182 ).
4
See generally Anxiety Disorders, National Institute of Mental Health – Mental Health
Information, available at https://www.nimh.nih.gov/health/topics/ anxiety-disorders/index.shtml.
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Plaintiff asserts that the ALJ erred at step three in the sequential evaluation process in
finding that she did not have an impairment that met or equaled the criteria of the Listings,
including mental Listings 12.04 (affective disorders), 12.06 (anxiety-related disorders), and
12.08 (personality disorders). The Listings are a regulatory device used to identify those
claimants whose medical impairments are so severe that they would be found disabled regardless
of their vocational background. Sullivan v. Zebley, 493 U.S. 521, 532 (1990). To meet a listed
impairment, a plaintiff is required to prove that she “meet[s] all of the specified medical
criteria.” Id. at 530 (emphasis in original). Meeting only some criteria for a listing, “no matter
how severely, does not qualify.” Id. The plaintiff bears the burden of proving a presumptively
disabling impairment under the listings. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ found that Plaintiff had moderate limitations in the categories of activities
of daily living, social functioning, and ability to maintain concentration, persistence, or pace (all
pursuant to the paragraph “B” criteria of the mental listings). To satisfy the “B” criteria under
these listings, a claimant’s impairments must result in at least two of the following: (1) “marked”
restrictions in activities of daily living; (2) “marked” difficulties in maintaining social
functioning; (3) “marked” difficulties in concentration, persistence, or pace; or (4) “repeated”
episodes of decompensation, each of extended duration. 20 C.F.R. pt. 404, subpt. P, app. 1, §§
12.04B, 12.06B, 12.08B.
The ALJ determined, after reviewing the record, that the evidence supported only a
classification of “moderate” restriction in these categories. As the ALJ correctly noted, the
record evidence shows that Plaintiff is able to cook, do dishes, use the computer, watch
television, read, help care for pet cats, crochet, drive, use email and Facebook, visit her mother
frequently, play social video games, and handle the family finances. Further, contrary to
Plaintiff’s assertion, the ALJ did not overlook evidence that Plaintiff could not perform these
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activities on an "independent, " "appropriate, " and "effective" basis in accordance with SSR l 63p.3. For instance, that Plaintiff can only do housework while wearing earplugs, which Plaintiff
highlights as demonstrating the severity of her limitations, does not mean that Plaintiff could not
perform the work independently, appropriately, or effectively.
Thus, the ALJ’s finding of “moderate” impairments that did not meet or equal the criteria
of any Listings is supported by substantial evidence.
C. The ALJ’s Decision to Discount the Opinion of Plaintiff’s Treating Psychiatrist,
Dr. Javia
Plaintiff strenuously objects to the ALJ’s decision to afford “little weight” to the opinion
of Plaintiff’s psychiatrist, Dr. Javia, that Plaintiff had “poor to no ability” in twelve areas of
work-related mental functioning. It is well established that “the ALJ—not treating or examining
physicians or State agency consultants—must make the ultimate disability and RFC
determinations.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (citing 20
C.F.R. §§ 404.1527(e)(1), 404.1546(c).) Furthermore, while an ALJ must consider the opinions
of treating physicians, “[t]he law is clear ... that the opinion of a treating physician does not bind
the ALJ” where it is not well supported or there is contradictory evidence. Chandler, 667 F.3d at
361 (alteration in original) (quoting Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011));
Under 20 C.F.R. § 404.1527(c)(2), a treating source's opinion will be given controlling
weight if the opinion “is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case
record.” Several factors may also be used to determine the weight given to a medical opinion
including: the length of the treatment relationship; the nature and extent of the treatment
relationship; supportability by the medical evidence; and consistency with the record as a
whole. Id. If a treating source's opinion conflicts with that of other medical sources, “the ALJ
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may choose whom to credit but cannot reject evidence for no reason or for the wrong
reasons.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). That is, the ALJ must rely only on
“contradictory medical evidence” in rejecting the treating source's opinion, rather than
“credibility judgments, speculation or lay opinion.” Id. An ALJ may also grant less weight to a
treating physician's opinion where it conflicts with his or her own treatment notes. See, e.g.,
Millard v. Comm'r., 2014 WL 516525, at *2 (W.D.Pa. Feb.7, 2014). An ALJ is required to
provide “an explanation of the reasoning behind [his] conclusions,” including “reason(s) for
discounting rejected evidence.” Fargnoli v. Halter, 247 F.3d 34, 43 (3d. Cir. 2001).
Here, the ALJ correctly assigned “little weight” to Dr. Javia’s opinion because it was not
entirely supported by other clinical assessments in the record. For instance, the ALJ pointed to
the therapy notes of Kassick, who saw her “once every few weeks” and reported, in contrast to
Dr. Javia’s single assessment, that she had “relatively unchanged mental status exams of an
anxious affect but only mild depression and no attential [sic] difficulties or gross behavioral
abnormalities.” AR 25. Further, he “indicated the claimant had anxiety and symptoms of
agoraphobia, but she primarily discussed only low frustration tolerance and low self-esteem in
her sessions.” AR 22. In addition, the ALJ found that the therapy notes of Stahl, undermine Dr.
Javia’s opinion. Stahl observed that Plaintiff “reported an inability to leave the house, but she
went to Barnes and Noble at least twice with her husband” and noted that Plaintiff was
socializing “the same amount with family and friends as she was in 2014.” AR 25. Plaintiff also
had normal mental status exams with Stahl, and her self-care and domestic skills were recorded
as “intact and unimpaired.” AR 25. The ALJ also observed that Stahl “specifically discussed
steps the claimant needed to take to be able to return to work, but the claimant was ‘not receptive
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to this plan.’” AR 25. The ALJ also noted that the reports of the state agency examiners, Dr.
Foley and Dr. Abrams, were generally consistent with those of Kassick and Stahl.
Further, the ALJ appropriately observed that Dr. Javia’s own treatment records did not
entirely support his findings as to Plaintiff’s mental functioning. For instance, the ALJ pointed to
the following observations contradicting the 2016 assessment:
[T]he claimant was seen generally no more frequently than once a month and [Dr.
Javia] notes that she had anxiety and noise sensitivity, but she was calmer with less
anxiety on medication (particularly with Abilify, which she later stopped on her
own, and then Lexapro), she had only vague somatic complaints, she reported
feeling ‘good’ for several months in 2015 and her husband also reported several
times in 2015 that she was doing good/better, her mood swings were noted to be
more stable, she was repeatedly not suicidal, she reported no panic attacks in
February 2015, the claimant repeatedly repotted no medication side effects, and it
was repeatedly noted that the claimant had a good response to therapy.
AR 25. This thorough review of Dr. Javia’s treatment notes, along with the other contradictory
medical evidence, demonstrates that ALJ’s according of little weight to Dr. Javia’s opinion was
supported by substantial evidence.
D. The ALJ's Residual Functional Capacity Assessment
Plaintiff next challenges the ALJ’s RFC findings, at step four. “Residual functional
capacity is defined as that which an individual is still able to do despite the limitations caused by
his or her impairment(s).” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir.
2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)); see 20 C.F.R. §
404.1545(a). The ALJ is responsible for making the ultimate determination of an individual's
RFC. 20 C.F.R. § 404.1546; see Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.
2011) (“The ALJ—not treating or examining physicians or State agency consultants—must
make the ultimate disability and RFC determinations.”). “[I]n making a residual functional
capacity determination, the ALJ must consider all evidence before him,” and, although the ALJ
may weigh the credibility of the evidence, he must “give some indication of the evidence which
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he rejects and his reason(s) for discounting such evidence.” Burnett, 220 F.3d at 121; see Cotter
v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). “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. “Where the ALJ's findings of fact are supported by substantial evidence,
[district courts] are bound by those findings, even if [the courts] would have decided the factual
inquiry differently.” Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292 (3rd Cir. 2012) (internal
quotation marks and citation omitted).
Here, Plaintiff argues that, in making her RFC determination, the ALJ improperly
weighed Plaintiff’s subjective evaluation of her symptoms. A claimant's subjective symptoms
must be corroborated by objective medical evidence; i.e., evidence of a medically determinable
impairment that can reasonably be expected to produce the claimant's underlying
symptoms. Hartranft v. Patel, 181 F.3d 358, 362 (3d Cir. 1999) (citing 20 C.F.R. § 404.1529). If
the ALJ determines that a medical impairment could reasonably cause the alleged symptoms, she
must evaluate the “intensity, persistence, and functionally limiting effects of the symptoms” to
determine the extent to which it affects the Plaintiff's ability to work. SSR 96–7p, 1996 SSR
LEXIS 4 (S.S.A. July 2) at *2; Garibay v. Comm'r Of Soc. Sec., 336 Fed. Appx. 152, 157 (3d
Cir. 2009). “This requires the adjudicator to make a finding about the credibility of the
individual's statements about the symptom(s) and its functional effects.” SSR 96–7p, at
*2; Garibay, 336 Fed. Appx. at 157. In complying with this standard, the decision “must contain
specific reasons for the finding on credibility, supported by the evidence in the case record, and
must be sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual's statements and the reasons for that weight.” SSR
96–7p, at *3–4. In determining whether a claimant’s statements are supported by the overall
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record, the ALJ will consider evidence from physicians, and other factors such as the claimant’s
daily activities; descriptions of symptoms; medications; and other treatment. 20 C.F.R. §§
404.1529(c), 416.929(c); SSR 16-3p (S.S.A.). Credibility determinations are entitled to
substantial deference on appeal. See Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003)
(stating that courts “ordinarily defer to an ALJ’s credibility determination because he or she has
the opportunity at a hearing to assess a witness' demeanor”).
In the present case, the ALJ determined that Plaintiff’s RFC was limited to “routine,
repetitive tasks,” with “infrequent changes in the work setting,” “occasional interaction with coworkers and supervisors,” rare to no “interaction with the public,” and no exposure to heights or
hazards. AR 20. In reaching this decision, the ALJ thoroughly discussed Plaintiff’s subjective
opinions and, as is required, provided specific reasons for assigning them little weight. At the
hearing, Plaintiff reported an inability to drive, to use public transportation, to perform even
basic chores without earplugs, to leave her house to shop, to socialize with friends, or to make it
through a week without several panic attacks. AR 21. However, the ALJ found that the following
evidence in the record did not entirely corroborate Plaintiff’s subjective testimony: (1) control of
symptoms with medication, particularly Lexapro; (2) infrequent counseling and other treatment,
including missed appointments with Dr. Javia; (3) progress notes also predominantly indicated
that the claimant's self-care skills and domestic skills were "intact and unimpaired” and she had
normal mental status exams; (4) the reports of Stahl, Kassick, and the state medical examiners,
and (5) participation in group therapy at Hunterdon. AR 24-26.
Thus, the ALJ’s decision at step four to assign “little weight” to Plaintiff’s subjective
assessment of her symptoms was supported by substantial evidence.
E. The ALJ’s Hypothetical Inquiry to the VE
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Next, Plaintiff challenges the hypothetical questions that the ALJ posed to the VE. When
an ALJ poses a hypothetical question to a VE that fails to reflect all of the applicant's
impairments that are supported by the record, the vocational expert's opinion generally cannot be
considered substantial evidence. See Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004) (
[A]n ALJ's hypothetical must include all of a claimant's impairments.”); Izzo v. Comm’r of Soc.
Sec., 186 F. App'x, 280, 287 (3d Cir. 2006) (“The ALJ's hypothetical questions to a vocational
expert must reflect all of a claimant's impairments supported by the record or the vocational
expert testimony cannot be considered substantial evidence.”). However, where an ALJ does not
include an alleged impairment or limitation in his or her RFC determination, the ALJ need not
pose that alleged impairment or limitation to the vocational expert. See Schmits v. Astrue, 386 F.
App'x 71, 76 (3d Cir. 2010) (“Because that limitation is not in [the claimant's] RFC, the ALJ did
not need to consider it at Step Five” in posing a hypothetical to a vocational expert); Izzo, 186 F.
App'x at 287 (finding that the ALJ did not err in failing to include in his hypothetical questions
to the vocational expert “specific reference[s] to [the claimant's] functional loss, mental
limitations, and subjective complaints of pain and fatigue,” where the ALJ had already
discredited those alleged impairments, excluding them from his RFC determination); Russo v.
Comm'r of Soc. Sec., No.13–06918, 2014 WL 6991987, at *11 (D.N.J. Dec. 10, 2014) (observing
that where “an ALJ has appropriately rejected a limitation, that limitation need not be conveyed
to the vocational expert.”).
Here, Plaintiff’s central complaint with the ALJ’s hypothetical was that it did not include
limitations deriving from Dr. Javia’s opinion. However, as previously discussed, the ALJ had
already properly determined that Dr. Javia’s opinion was not well-supported and assigned it little
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weight.5 At that point, an ALJ was not compelled to include any limitations from that opinion in
her hypothetical inquiry. See Priel v. Astrue, 453 F. App’x 84, 87–88 (2d Cir. 2011) (“In
determining Priel’s RFC, the ALJ properly evaluated the entirety of the record, including both
medical and non-medical evidence, and discounted Dr. Young’s opinion insofar as it conflicted
with other substantial evidence. At the same time, the ALJ properly declined to include in his
hypothetical question symptoms and limitations that he had reasonably rejected.”).
Therefore, the ALJ’s hypothetical question to the VE was not improper.
IV.
CONCLUSION
For the reasons set forth above, I find that the ALJ’s decision is supported by substantial
evidence in the record. Accordingly, the ALJ's decision is affirmed.
Dated: November 20, 2018
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge
This includes Dr. Javia’s opinion that Plaintiff could not maintain consistent pace without an
unreasonable number and length of rest periods, which Plaintiff contends the ALJ improperly
omitted, in contravention of Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004).
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