MCCLEASE v. ASTRUE

Filing 28

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WILLIAM H. YOHN, JR ON 9/26/2013. 9/26/2013 ENTERED AND COPIES E-MAILED.(tomg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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CATHY MCCLEASE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

CIVIL ACTION
NO. 11cv0373

MEMORANDUM
YOHN, J.

September 26, 2013

Plaintiff, Cathy McClease, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of the decision of the Commissioner of Social Security (the “Commissioner”) denying her
application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act
(“the Act”). I referred the matter to a magistrate judge, who submitted a report recommending
that I affirm the Commissioner’s decision to deny McClease SSI benefits. McClease filed
objections to the report and recommendation, to which the Commissioner responded. After
independent, de novo review of the report and recommendation, and plaintiff’s objections, I will
approve and adopt the report of the magistrate judge denying plaintiff’s request for review and
entering judgment in favor of defendant.
I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Procedural History

McClease protectively filed an application for SSI benefits on July 31, 2006, alleging
disability as of July 1, 2006, stemming from depression with psychosis, PTSD, endometriosis,

scoliosis, anxiety with panic attacks, and headaches. (R. 82, 123, 127.) The Social Security
Administration denied McClease’s claims for SSI benefits on October, 27, 2006. (R. 25, 82-86.)
McClease then timely filed a written request for a hearing which was held before an
Administrative Law Judge (“ALJ”) on March 4, 2008. (R. 34-69, 87.) McClease, represented by
counsel, appeared and testified at this hearing, as did vocational expert, Daniel Rapochie. (R. 3669).
Following this hearing, in a decision dated June 3, 2008, the ALJ denied McClease
benefits. (R. 22-33.) Specifically, the ALJ found that McClease had severe impairments with
regard to depression, anxiety, and a history of transient ischemic attacks,1 and non-severe
impairments with regard to hypertension and endometriosis. (R. 27, 28.) McClease’s
impairments, however, did not meet the criteria of “listed impairments” in appendix 1 of the
regulations provided for in the Act. (R. 28.); See 20 C.F.R. § 404, subpt. P, app. 1. Ultimately,
the ALJ found that McClease has “the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b) except the claimant is confined to routine, one to two step tasks;
the work should involve few work changes and be self paced in nature with no more than limited
contact with the public or co-workers and with limited supervision.” (R. 29.)
McClease, through counsel, then filed a timely request for review of the ALJ’s decision
with the Appeals Council on July 18, 2008. (R. 3, 19.) The Appeals Council granted an
extension of time through January 8, 2010 for plaintiff to submit her brief in support of her
request for review. (R. 12) In the interim, on October 28, 2009, I remanded a separate claim, for
1

A transient ischemic attack is defined as a brief period during which the brain does not
receive enough blood. Its symptoms include blurred vision, slurred speech, loss of orientation
and numbness. Attorneys’ Dictionary of Medicine (Matthew Bender & Co., Inc., 2009).
2

disability insurance benefits and supplemental security income, McClease had previously filed on
October 7, 2004 (“2004 Claim”). By letter dated January 10, 2007, McClease, through counsel,
rather than filing her brief, requested that the 2004 Claim be consolidated with the instant claim.2
(R. 3-4.) On May 27, 2010, the Appeals Council denied McClease’s request for review on the
instant claim. (R. 9-11.) On that same date, the Appeals Council vacated the final decision in
the 2004 Claim and remanded the case to the ALJ. (R. 7-8.) On June 25, 2010, McClease
requested reconsideration of the Appeals Council’s denial of her request for review, referencing
her January 7, 2010 letter and her request for consolidation. (R. 3-4.) On December 16, 2010,
the Appeals Council denied counsel’s request. (R. 1-2.)
Thereafter, on January 25, 2011, McClease filed in this court a Request for Review of the
ALJ’s decision. I assigned the matter to a magistrate judge for a report and recommendation. On
July 23, 2013, the magistrate judge concluded that the ALJ’s decision was supported by
substantial evidence and recommended that the court affirm the Commissioner’s decision to deny
benefits. McClease filed timely objections to the magistrate judge’s report and recommendation,
and the Commissioner filed a response to McClease’s objections. I will overrule the objections,
approve and adopt the recommendation of the magistrate judge, and enter judgment affirming the
Commissioner.
B. Factual History
McClease was born on August 31, 1959, and, at the time of the ALJ hearing in this
matter, she was 48-years-old. (R. 41, 111.) McClease cares for her twelve-year-old
2

A copy of counsel’s correspondence is not in the record; however, the letter is
referenced in counsel’s Memorandum of Law in Support of Claimant’s Request for
Reconsideration of the Appeals Council’s Denial of Claimant’s Request for Review.
3

granddaughter – the daughter of McClease’s daughter, Candace – whom she has raised since she
was three-months-old. (R. 48.) Candace does not live with McClease. (R. 48, 50.) McClease
also lives with a second grown daughter, and that daughter’s child. (R. 41.) McClease
completed her high school education. (R. 132.) She has worked, previously, as an assembly line
worker, a packer, a telemarketer, a mailsorter, and a housekeeper (R. 135, 157.) Now no longer
engaged in substantial gainful activity, McClease claims that she is disabled as a result of her
anxiety, depression, uterine disorder, and a history of a transient ischemic attack.
Anxiety and Depression
McClease began receiving mental health treatment at the Family Service Association of
Bucks County in March 2004. (R. 244.) She meets weekly with a therapist and monthly with
her psychiatrist, Randi Mittleman, M.D. (R. 242-243, 343-348.) McClease’s treatment records
trace her struggle with depression and anxiety, stemming largely from her daughter, Candace’s,
chaotic and violent presence in her life. (R. 284.) Candace harasses McClease and has
physically assaulted McClease, McClease’s other daughter, her granddaughter, and a friend. (R.
231, 269-270, 271, 277, 284, 370.) McClease reports a constant fear of Candace coming into her
home and starting “violent [and] destructive behavior.” (R. 282.) In three separate treatment
plan updates, spanning nearly a year from 12/26/06 through 9/12/07, McClease’s therapist
reiterates the same goal of lowering depression and increasing safety by “exploring and planning
how to cope with grown children.” (R. 352-360.) To that end, the therapist worked with
McClease to develop safety plans, and discussed the need for a protection from abuse order
against Candace. (R. 263, 264, 271, 278, 279, 342.)
In her treatment records, Dr. Mittleman has variously noted that McClease was depressed,
4

anxious, “very upset about circumstances,” and “overwhelmed by life circumstances” at their
sessions. (R. 337, 340, 341.) On one occasion, Dr. Mittleman noted that McClease “[r]eports
spending all day yesterday in bed depressed.” (R. 336.) Dr Mittleman reports that McClease has
difficulties with sleep and appetite, and had lost three pounds between November and December
2006, which was unintentional and attributable to her depression and anxiety. (R. 285, 336, 339,
341.) On December 21, 2006, in a psychiatric evaluation, Dr. Mittleman again reiterated
McClease’s various life stressors, including Candace’s harassment, and noted that McClease
admits to anhedonia, decreased energy and decreased concentration. (R. 285.) In addition to
McClease’s therapy sessions, Dr. Mittleman has prescribed medication for McClease, including
Zoloft, Wellbutrin, and Zyprexa. (R. 296.)
At her ALJ hearing, McClease reiterated the anxiety and stress she suffered because of
her daughter, Candace. (R. 47-50.) She stated that her interactions with Candace leave hear
“emotionally disturbed.” (R. 47-50.) She testified that her anxiety and depression have led to
concentration problems that prevent her from working. (R. 46.) She reported that she can “sit
here for a while,” to do “little things,” but then her “depression sets in” and “[she] can’t keep
[her] focus.” (R. 47.) She then takes her medication and lies down, due to the pain. (R. 47.)
She further reports difficulties with sleep and appetite. (R. 51, 52.)
McClease also testified to an active family life. She has raised her grandchild, Candace’s
daughter, since the baby was three-months old. (R. 48.) She also watches her two-year-old
granddaughter, overnight, while her other daughter is at work. (R. 50-51.) She visits with her
parents at least once a week, and cared for them after her mother suffered a heart attack. (R. 5658.) With regard to her activities outside of the family, McClease reports that she is “not a very
5

social” person, has few friends, and visits them rarely. (R. 56.) She attends church, and was
previously in the choir, but her attendance has diminished recently. (R. 60.)
Uterine Symptoms
McClease also has a history of uterine problems. From as early as 1996, Aaron Hasiuk,
M.D. has treated McClease for various conditions including cysts on her ovaries, heavy
menstrual bleeding, clotting and cramping. (R. 186, 196.) In May and August 2004, Dr. Hasiuk
performed two surgeries, attempting to alleviate McClease’s symptoms. (R. 190-191, 197-198.)
In October 2004, Dr. Hasiuk noted that it was “impossible to do the [surgeries] properly both
times” and that McClease continued to experience heavy bleeding and severe cramping. (R.
202.) At that time, Dr. Hasiuk prescribed Percocet for the pain and recommended that McClease
consider a hysterectomy at her three month check-up. Id.
Thereafter, according to the record, McClease sought no further medical treatment until
March 20, 2007. (R. 300.) At that time, Dr. Hasiuk reported that McClease had heavy menstrual
bleeding, with clotting, and severe cramps. Id. Dr. Hasiuk scheduled McClease for a pelvic
ultrasound. (R. 318.) At McClease’s follow-up appointment, Dr. Hasiuk noted that McClease’s
pelvic ultrasound was “completely unremarkable,” that her endometrial stripe was normal, and
that she was “not having any trouble with her periods.” (R. 298.) Due to her back pain, and
“shadows in her kidneys,” noticed during an ultrasound, Dr. Hasiuk recommended that McClease
see a urologist. Id.
On July 5, 2007, Scott Hubosky, M.D., a urologist, examined McClease. (R. 322-323.)
He noted her past medical history for endometriosis but made no observations of either bleeding
or cramping issues during menses. Id. He did, however, recommend a CT scan of the abdomen
6

and pelvis to check for kidney stones. Id. At the follow-up appointment on July 27, 2007, Dr.
Hubosky found “no evidence of stones or obstruction in the CT scan” and “no evidence of blood
on her urinalysis.” (R. 321.) Dr. Hubosky did, however, note that McClease had back pain that
“seems to get worse at the time of her period.” Id. According to the record, McClease sought no
further medical treatment for her uterine symptoms.
Prior to the ALJ hearing, the only other reference to these uterine symptoms consists of a
single statement, on March 12, 2007, when McClease complained of “female problems” to her
therapist. At the ALJ hearing, McClease testified that she continues to have “a lot of cramping,
clotting, [and] heavy bleeding.” (R. 54.) She stated that her period lasts for seven days, and that
“it’s so painful [she] usually stay[s] in bed on those days.” Id. McClease reported that she has
heavy bleeding and clotting for the first three days, and limits her activities for five days. Id.
Transient Ischemic Attack
Finally, on May 2, 2007, while in North Carolina, McClease suffered from a severe
headache with accompanying neurological symptoms that included: right face, arm and leg
numbness and weakness, confusion, and slurred speech.3 (R. 37-38, 424.) McClease received
immediate treatment at the Outer Banks Hospital of North Carolina, where she was prescribed
Plavix and referred to a neurologist. (R. 424.) On August 21, 2007, McClease was then
examined by a neurologist, Scott Mintzer, M.D., who reported that she was asymptomatic and
denied any further headache, weakness or neurological dysfunction. Id. At her ALJ hearing,
McClease reported continued weakness on her right side. (R. 45-46.) She also stated that, since

3

In her testimony at the ALJ hearing, McClease stated that she experienced numbness on
her left side. (R. 45.)
7

the event, she attended church less, and was no longer a member of the church choir, because of
her poor attendance. (R. 60-61.)
II.

STANDARD OF REVIEW
A district court reviews de novo the parts of the magistrate judge’s report and

recommendation to which either party objects. 28 U.S.C. § 636(b)(1). The district court may
accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. Id.
With respect to the ALJ’s decision, however, the standard of review is deferential.
Although a district court exercises “plenary review” over any legal questions presented by the
ALJ’s decision, a court may review the ALJ’s “factual findings only to determine whether the
administrative record contains substantial evidence supporting the findings.” Allen v. Barnhart,
417 F.3d 396, 398 (3d Cir. 2005). As the Supreme Court has explained, “[s]ubstantial evidence
‘does not mean a large or considerable amount of evidence, but rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Hartranft v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). This
standard requires “more than a mere scintilla” of evidence but “somewhat less than a
preponderance of the evidence.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
The court may not “weigh the evidence,” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d
Cir. 1992), and may not “set the [ALJ’s] decision aside if it is supported by substantial evidence,
even if [the court] would have decided the factual inquiry differently,” Hartranft, 181 F.3d at
360; see also 42 U.S.C. § 405(g) (“The findings of the [ALJ] as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). In determining whether the ALJ’s decision is
8

supported by substantial evidence, however, the court must consider “the evidentiary record as a
whole, not just the evidence that is consistent with [the ALJ’s] finding.” Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). “A single piece of evidence will not satisfy the
substantiality test if the [ALJ] ignores, or fails to resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it is overwhelmed by other evidence . . . or if it really
constitutes not evidence but mere conclusion.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.
1983).
III.

DISCUSSION
A. Administrative Framework Overview
The issue before the ALJ was whether plaintiff was disabled within the meaning of the

Social Security Act and thus entitled to SSI. The Act defines a disability as an 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 twelve months.” 42 U.S.C. §
1382c(a)(3)(A). A person has a disability when her impairment or combination of impairments
render her unable to either return to previous work or, “considering [her] age, education, and
work experience, engage in any other kind of substantial gainful work which exists in the
national economy...” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant is disabled and eligible for SSI under the Act, the ALJ
uses a five-step process. 20 C.F.R. § 416.920. First, the ALJ considers the claimant’s work
activity and determines whether the claimant is engaged in “substantial gainful activity.” 20
C.F.R. § 416.920(b). If she is, the ALJ will find that the claimant is not disabled and will deny
9

her applications for disability benefits. Id. If the claimant is not engaged in substantial gainful
activity, the ALJ proceeds to step two, to determine whether she has a severe physical or mental
impairment” that significantly limits her ability to perform basic work activities. 20 C.F.R. §
416.920(c). If the claimant’s impairment is severe, the ALJ proceeds to the third step to
determine whether the impairment meets or is medically equivalent to one of the “listed
impairments” in appendix 1 of the regulations. 20 C.F.R. § 416.920(d). If the claimant’s
impairment is listed in the appendix or is medically equivalent to one of the listed impairments,
the impairment is severe enough to prevent an individual from engaging in gainful activity, and
the ALJ will find that the claimant is disabled. Id.
If the claimant’s impairment does not meet or equal a listed impairment, the inquiry
continues. The ALJ proceeds to step four, to determine whether the claimant has the residual
functional capacity (“RFC”) to perform her past work. 20 C.F.R. § 416.920(e). A claimant’s
RFC is “the most [she] can still do despite [her] limitations.” 20 C.F.R. § 416.945(a). If the
claimant can still perform her past work, the ALJ will find that she is not disabled and will deny
her claims for benefits. 20 C.F.R. § 416.920(e). If the claimant cannot perform her past work,
the ALJ proceeds to the fifth and final step and determines whether the claimant is able to do
other work, given her RFC, as well as her age, education, and work experience. 20 C.F.R. §
416.920(f). If the claimant is able to do other work, the ALJ will find that she is not disabled.
Id. To support a finding that a claimant is not disabled, however, the Commissioner must
provide evidence that demonstrates that other work that the claimant can do exists in “significant
numbers in the national economy.” 20 C.F.R. § 416.960(c). In each of the first four steps, the
claimant bears the burden of proof; but, the burden shifts to the Commissioner at step five.
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Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007).
Applying this administrative framework to the plaintiff’s impairments, the ALJ found: (1)
plaintiff had not engaged in substantial gainful activity since July 31, 2006; (2) plaintiff’s
depression, anxiety and history of a transient ischemic attack are severe impairments, and her
hypertension and endometriosis are non-severe impairments; (3) plaintiff’s severe impairments
do not meet or medically equal a listed impairment; (4) plaintiff has the RFC to perform light
work and is capable of performing her past work as a housekeeper; and (5) plaintiff is capable of
performing other jobs that exist in significant numbers in the national economy.
In her request for review, the plaintiff argued that the ALJ erred when she: (1) rejected the
Medical Source Statement (“MSS”) from plaintiff’s treating psychiatrist, Dr. Mittleman, in the
RFC assessment; (2) found plaintiff’s uterine condition to be a non-severe impairment; and (3)
failed to find plaintiff disabled, despite crediting her statements regarding her impairments. The
magistrate judge recommended that the plaintiff’s request for review be denied on each matter
and judgment entered in favor of the Commissioner. The plaintiff filed timely objections,
objecting only to the magistrate’s report regarding: (1) the ALJ’s rejection of Dr. Mittleman’s
MSS, and (2) the ALJ’s failure to find plaintiff disabled, despite crediting her statements. The
plaintiff did not object to the magistrate’s finding that plaintiff’s uterine condition was a nonsevere impairment.
After careful review of the record, and the arguments raised by the plaintiff in her brief in
support of her request for review, and in her objections to the magistrate judge’s report and
recommendation, I will not disturb the ALJ’s findings and conclusions, or the report and
recommendation of the magistrate judge.
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B. The ALJ Had Substantial Evidence to Support a Finding That Plaintiff Had the
Residual Functional Capacity to Perform her Past Work
When assessing a claimant’s RFC, the ALJ must consider all the relevant evidence in the
case record. 20 C.F.R. § 416.945. This assessment embraces both medical evidence and other
non-medical evidence, including the claimant’s descriptions of her own symptoms and
limitations, and observations made by both doctors and lay people. Id. An ALJ is obligated to
explain in her decision what weight she gives to “all of the pertinent evidence before [her].”
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000). An ALJ “may not
reject pertinent or probative evidence without explanation.” Johnson v. Comm’r of Soc. Sec., 529
F.3d 198, 204 (3d Cir. 2008). “Although the ALJ may weigh the credibility of the evidence,
[she] must give some indication of the evidence which [she] rejects and [her] reason(s) for
discounting such evidence.” Id. “In the absence of such an indication, the reviewing court cannot
tell if significant probative evidence was not credited or simply ignored.” Id. (quoting Cotter v.
Harris, 642 F.2d 700, 705 (3d Cir. 1981)).
1.

Medical Opinions in RFC Determinations

Plaintiff’s primary contention is that the ALJ did not give the proper weight to her longtime treating psychiatrist, Dr. Mittleman. Specifically, plaintiff argues that the ALJ erred in
failing to credit Dr. Mittleman’s MSS opinion. For the following reasons, I find that the ALJ did
not err in failing to credit Dr. Mittleman’s report.
Medical evidence includes “statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [claimant’s]
impairment(s), including [her] symptoms, diagnosis and prognosis, what [she] can still do despite
12

impairment(s), and [her] physical or mental restrictions.” 20 C.F.R. § 416.927(a). If any of the
medical evidence is inconsistent with other evidence, or is internally inconsistent, the ALJ will
weigh the evidence in making its disability determination. 20 C.F.R. § 416.927(c)(2). The
opinion of an examining physician is ordinarily weighted more than that of a non-examiner, and
the opinion of a treating physician is especially prized. 20 C.F.R. §§ 404.1527(d)(1), (d)(2).
When “a treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s]
impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case record,” it is
given “controlling weight.” 20 C.F.R. § 416.927(d)(2). However, when a medical opinion is
inconsistent with substantial evidence in the case record, it is given no such controlling weight.
Id.
Further, the determination of a claimant’s RFC is an administrative finding. § 416.927(e).
Such a finding directs the “determination or decision of disability,” and is therefore dispositive of
the case. Id. Accordingly, unlike the medical opinions from a treating physician regarding the
nature and severity of claimant’s impairment, opinions from medical sources that speak to a
claimant’s RFC are afforded no special weight. Salles v. Comm’r of Soc. Sec., 229 F. App’x 140,
(3d Cir. 2007) (“An ALJ need not defer to a treating physician’s opinion about the ultimate issue
of disability because the determination is an administrative finding reserved to the
Commissioner.”) While the ALJ will look to an opinion from a claimant’s treating physician for
RFC determinations, that opinion is accorded no more weight than observations made by nontreating physicians or non-medical personnel such as family, neighbors and friends. 20 C.F.R. §§
416.945(a), 416.927(e)(2).
13

In the MSS, Dr. Mittleman reported that the plaintiff suffered from an Axis I major
depressive disorder, and has been “persistently depressed” for “at least 2 years.” (R. 394-395.)
According to Dr. Mittleman, the plaintiff suffers from sleep, appetite, and mood disturbances,
decreased energy, anhedonia and blunt affect. (R. 394.) Dr. Mittleman rated the plaintiff as
having fair (seriously limited, but not precluded), poor or no ability to remember work-like
procedures, maintain attention for two hours, maintain attendance and be punctual, sustain an
ordinary routine without special supervision, complete a normal workday and workweek without
interruption, or deal with normal work stress. (R. 397.) She further rated the plaintiff as having
marked (moderate, but less than extreme) “deficiencies of concentration, persistence or pace
resulting in a failure to complete tasks in a timely manner.” (R. 398.) She also indicated the
plaintiff would experience three episodes of “deterioration or decompensation in work or worklike settings” which would cause the plaintiff to “withdraw from that situation.” (R. 398.)
Finally, she recorded, “[p]atient reports memory problems, concentration problems. Depression
causes fatigue which would prevent completion of a workday” (R. 397.) According to Dr.
Mittleman, the plaintiff’s “anxiety level and depression causes [her] concentration problems.”
(R. 396-397.)
The ALJ points to substantial evidence to support her rejection of Dr. Mittleman’s
opinion. First, the ALJ declined to accept Dr. Mittleman’s MSS because it was inconsistent with
the therapy notes in the case record, including Dr. Mittleman’s own therapy notes. (R. 31.) The
ALJ pointed generally to exhibit D14F and D15F, which indicated that despite suffering from
depression, including a bout that left her unable to get out of bed for a day, the plaintiff was able
to raise her pre-teen granddaughter, assist her daughter with her own newborn daughter, and feed
14

her ill father. (R. 31, 335, 336, 337, 342.) As the ALJ indicated, Dr. Mittleman’s therapy notes
“generally report relatively benign symptoms and rather unrestricted activities of daily living.”
(R. 31.)
Second, the ALJ pointed to the plaintiff’s three global assessment of functioning scores
(“GAF”)4 as objective medical evidence inconsistent with Dr. Mittleman’s MSS. (R. 31.) In
January 2007, Dr. Mittleman assessed the plaintiff at a 55 GAF; in August 2007, a 61 GAF; and
in September 2007, a 56 GAF. (R. 288, 352, 355.) A range of 51 through 60 indicates moderate
symptoms (e.g. flat affect), or moderate difficulty in social or occupational functioning. A range
of 61 through 70 indicates some mild symptoms (e.g. depressed, mild insomnia), or some
difficulty in social and occupational functioning. Again, these scores are inconsistent with the
extensive concentration, attendance and decompensation problems, and ultimately the inability to
work, as reflected in Dr. Mittleman’s MSS.
Third, the ALJ noted that Dr. Mittleman’s findings regarding the plaintiff’s inability to
maintain consistent attendance at work, or “perform mental work activities on a sustained basis”
was less persuasive, because it was based on the plaintiff’s subjective complaints, rather than
objective medical findings. (R. 31.) As the ALJ noted, Dr. Mittleman indicated in the MSS that
the “patient reports” memory and concentration problems consistent with the plaintiff’s inability
to complete a work day. (R. 397.) .
Finally, the ALJ points to the Mental Residual Functional Capacity Assessment

4

The GAF score is used to rate an individual’s overall level of “psychological, social, and
occupational functioning.” American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders, 32 (4th ed. Text Revision 2000). The GAF scale ranges from 1 to 100 and
is divided into ten ranges of functioning. Id.
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(MRFCA) by the state psychologist, John Hower, Ph. D. (R. 31.) Dr. Hower found that,
contrary to Dr. Mittleman’s MSS, the plaintiff was only moderately limited in her ability to
understand and remember instructions, carry out those instructions, maintain regular attendance
and punctuality, and the ability to complete a normal workday and work week. (R. 258-259.)
Dr. Hower concluded that the plaintiff “can function in production oriented jobs requiring little
independent decision making,” and “retains the ability to perform repetitive work activities
without constant supervision.” (R. 260.)
In her objections, the plaintiff argues that the ALJ did not weigh probative evidence when
she decided not to accept Dr. Mittleman’s findings in the MSS. The plaintiff first points to the
magistrate judge’s acknowledgment of “repeated references to the emotional toll her daughter’s
unpredictable violence against Plaintiff has caused.” (Pl. Obj. 4.) It is difficult to discern from
that brief statement what exactly plaintiff objects to with regard to these findings. In her brief in
support of her request for review, the plaintiff argued that the ALJ’s decision mischaracterized
the treatment the plaintiff received at the Family Service Association, claiming that the ALJ’s
findings were “not an accurate reflection of Dr. Mittleman’s records.” (Pl. Br. 9.) Plaintiff
points to extensive therapy notes documenting the trouble with her violent daughter, Candace.
Id. Plaintiff notes that her fear of Candace “is not unfounded”and has caused her both physical
and emotional distress. Id. She further points to the series of protection from abuse orders she
has secured, and the safety plan that she developed with her therapist to try and resolve the fear
and anxiety that Candace creates in her life. (Pl. Br. 10.)
The plaintiff’s recitation of the record does not demonstrate how, exactly, the ALJ
mischaracterized plaintiff’s treatment. The ALJ acknowledged Candace’s impact, noting that the
16

plaintiff “copes with very stressful life circumstances, which, understandably, affect her mental
health.” (R. 30.) The ALJ also specifically acknowledged that Candace’s violation of a
protection from abuse order had resulted in her incarceration. Id. While the decision does not
meticulously cite to every violent or stressful event affecting the plaintiff, it does recognize the
“significant family stressors,” and attributes at least part of the plaintiff’s health problems to the
family situation. Id.
The plaintiff next argues that the ALJ’s decision and the magistrate judge’s report and
recommendation overlooked various treatment notes, including notes showing that the plaintiff
suffered from anhedonia, decreased energy, decreased concentration, and that her depression and
anxiety affected her appetite and sleep. (Pl. Obj. 5.) Plaintiff further notes that the record
indicated that the plaintiff appeared “emotionally tired” on one visit, and that she “seem[ed] to
struggle with depression which gets in the way of managing everyday life & household.” (Pl.
Obj. 6.) The plaintiff gives many citations to the record, documenting her various struggles with
depression. (Pl. Obj. 5-6.)
Except for the single notation to plaintiff’s decreased concentration, however, none of the
references to the medical records refute the inconsistency the ALJ found between Dr.
Mittleman’s MSS opinion and the record. The ALJ found that Dr. Mittleman’s medical records
are inconsistent with her findings in the MSS regarding the plaintiff’s inability to concentrate,
remember work-like procedures, maintain attention for two hours, maintain attendance and
punctuality, sustain an ordinary routine without special supervision, follow simple tasks or
complete a normal workday or work week without interruption. While it is true that the ALJ
neglected to cite the record with the same degree of specificity helpfully found in plaintiff’s brief,
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the exclusions plaintiff notes are not really pertinent to the ALJ’s consideration regarding how
she would weigh Dr. Mittleman’s MSS report. Therapist and psychiatrist notes that generically
reference various and inconsistent problems with poor appetite, problems sleeping, medication
adjustments, anhedonia and an inability to get out of bed one day help to track the general
symptoms associated with the plaintiff’s struggle with depression. Such citations, however, do
not contradict the inconsistencies that the ALJ noted between Dr. Mittleman’s therapy notes and
her MSS report. Accordingly, while the references are pertinent to a determination of plaintiff’s
impairments, they are not pertinent to the ALJ’s determination that Dr. Mittleman’s conclusions,
regarding the plaintiff’s inability to work, are not persuasive.
The plaintiff next argued that the ALJ relied excessively on her home life, and daily
activities caring for her parents, children, and grandchildren. However, as indicated above,
plaintiff’s home life was only one of a number of considerations the ALJ gave in assessing and
rejecting Dr. Mittleman’s MSS. In addition to the plaintiff’s active home life, the ALJ
referenced the plaintiff’s three GAF scores which placed her comfortably in the moderate to mild
range for difficulty in occupational functioning. The ALJ also pointed to the state psychologist’s
assessment, which found that the plaintiff’s medical records did not indicate an inability to
continue previous work. And, most convincingly, the ALJ pointed to the fact that nothing in Dr.
Mittleman’s notes, prior to her MSS report, indicated the sort of difficulty in daily functioning
that would result in an adverse RFC determination.
Plaintiff further claims that the ALJ’s reliance on her active home life is misguided,
because, “Dr. Mittleman’s records and report emphasize the distinction between the ability to
function in a home setting and a work setting.” (Pl. Obj. 7.) However, the plaintiff cites to
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nothing in Dr. Mittleman’s records that reflects this distinction, and the court could find no such
reference on its review of the case record. Instead, the plaintiff cites Dr. Mittleman’s MSS,
where she checked off “Yes” to the question, “Does your patient have a residual disease process
that has resulted in such marginal adjustment that even a minimal increase in mental demands or
changes in the environment would be predicted to cause the individual to decompensate?” (Pl.
Obj. 7; R. 399.) Nothing in this question indicates a distinction between the plaintiff’s ability to
function at home as opposed to work. And nothing in Dr. Mittleman’s checkmark indicates any
consideration of such a distinction. In fact, Dr. Mittleman’s treatment notes indicate that,
contrary to her answer to the question, the plaintiff, in fact, did deal with “minimal increase in
mental demands [and] changes in her environment.” (R. 399.) Dr. Mittleman reported that the
plaintiff had to care for her mother and father, when her mother became ill, and the plaintiff’s
daughter had a baby while living with the plaintiff. (R. 335, 336, 337.) Dr. Mittleman’s notes do
not indicate that these changes caused the plaintiff to decompensate. And, certainly, Dr.
Mittleman never addressed in these notes any distinction between the plaintiff’s ability to cope
with mental demands and environmental changes in her home life and her ability to do the same
in her work life. The plaintiff next refers to her GAF scores as the only other evidence
demonstrating this supposed distinction Dr. Mittleman makes regarding the plaintiff’s ability to
function at home as opposed to work. (Pl. Obj. 7-8.) But, again, Dr. Mittleman herself makes no
such finding on any records submitted to the court. The inferences plaintiff draws from the MSS,
creating a distinction between plaintiff’s ability to cope with an active home life, but not an
active work life, was never made by Dr. Mittleman in either her treatment notes or her MSS
opinion.
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Finally, the plaintiff objects to the ALJ’s finding that Dr. Mittleman’s MSS opinion
regarding the plaintiff’s inability to concentrate was less persuasive because it was based on the
plaintiff’s subjective complaints. (R. 31.) In the MSS, Dr Mittleman noted that “the patient
reports memory problems, concentration problems.” (R. 397.) The plaintiff argues that Dr.
Mittleman’s opinion regarding the plaintiff’s concentration problems was based on the doctor’s
“clinical observations, the [p]laintiff’s mental status examination and psychiatric evaluation, as
well as her review of prior records.” (Pl. Obj. 8.) However, the plaintiff points only to findings
Dr. Mittleman makes in the MSS. Plaintiff, in fact, concludes that “there is ample evidence that
Dr. Mittleman’s opinion had ‘reasonable support’ in the record,” without citing to a single note
in Dr. Mittleman’s medical records to support this conclusion. In its own examination of the
medical records, the court did find a single reference to plaintiff’s decreased concentration, but it
was also based on the plaintiff’s own complaint. (R. 285.) The court found no further reference
in Dr. Mittleman’s treatment records that indicate the plaintiff suffered from the severe
concentration problems outlined in Dr. Mittleman’s MSS report.5 Further, none of the plaintiff’s
treatment plans ever mentioned memory or concentration problems, and her therapists never
created treatment goals to address any memory or concentration problems. (R. 290-292, 349360.)
The ALJ pointed to substantial evidence to support her finding that Dr. Mittleman’s MSS
opinion was not persuasive. The inconsistency between Dr. Mittleman’s MSS and her treatment
records; the plaintiff’s GAF scores; the state psychologist’s report; and Dr. Mittleman’s reliance

5

While the court has read all the case record, many of Dr. Mittleman’s hand-written notes
are illegible.
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on the plaintiff’s subjective complaints, raise enough evidence such that “a reasonable mind
might accept [it] as adequate to support a conclusion.” Hartranft, 181 F.3d at 360. Given the
extremely deferential substantial evidence standard that binds the court, I agree with the
conclusion of the magistrate judge.
2.

Plaintiff’s Symptoms in the RFC Determination

Plaintiff next objects to the ALJ’s credibility finding regarding the plaintiff’s testimony.
Specifically, the plaintiff objects to the ALJ’s determination that plaintiff was not disabled,
despite acknowledging that the plaintiff’s statement at the ALJ hearing were “generally entirely
credible.” For the following reasons, I find that the ALJ did not err when she credited the
plaintiff’s statements, but failed to find that the plaintiff’s symptoms resulted in a disability.
When a claimant’s alleged disability is based, in part, on the claimant’s subjective
symptoms, the ALJ must employ a two-step analysis to determine the severity of those
symptoms. 20 C.F.R. § 416.929. In the first step, the ALJ must determine whether the claimant
has a “medically determinable impairment that could reasonably be expected to produce” the
claimant’s symptoms. 20 C.F.R. § 416.929(b). The claimant must present objective “medical
signs and findings, established by medically acceptable clinical or laboratory diagnostic
techniques,” showing the existence of the impairment. Id. In the second step, the ALJ must
analyze the “intensity and persistence” of the claimant’s symptoms to determine how her
symptoms “limit [her] capacity for work.” 20 C.F.R. § 416.929(c). Thereafter, the ALJ will
consider “the extent to which there are any conflicts between [claimant’s] statement and the
evidence in the case record, and will make a determination on claimant’s symptoms to the extent
they are consistent with the evidence. 20 C.F.R. § 416.929(c). A claimant’s statements about
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her symptoms, alone, are insufficient to establish a disability, “there must be medical signs and
laboratory findings which show that [a claimant has] a medical impairment(s) which could
reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. § 416.929(a).
In her decision, the ALJ found that McClease had “medically determinable impairments
that could reasonably be expected to produce the alleged symptoms.” (R. 30.) She further found
that McClease’s statements were “generally entirely credible.” Id. Nonetheless, the ALJ found
that McClease had “failed to demonstrate disability within the meaning of the Act.” Id. In
support, the ALJ notes that the plaintiff’s “activities of daily living are such as would not be
consistent with wholly work preclusive limitations.” (R. 30.) These activities include
babysitting her daughters’ children, caring for her mother, keeping medical appointments, and
attending church functions. (R. 30-31.) Thus, while the plaintiff “copes with very stressful life
circumstances, which, understandably, affect her mental health,” her daily life activities support a
finding that her RFC permit her to resume her previous work. (R. 31.)
The ALJ also cited plaintiff’s GAF scores which indicate only mild or moderate
symptoms, consistent with the ability to do unskilled work. (R. 30.) The ALJ further found that
the plaintiff’s “mental health treatment has been routine and conservative in nature.” Id. The
record gives no evidence of plaintiff needing or receiving emergency treatment, inpatient
psychiatric treatment, or intensive outpatient treatment. (R. 30-31.) Finally, the state agency
psychologist found that the plaintiff “had the capacity to meet the basic mental demands of work
on a competitive basis, and perform simple, routine, repetitive tasks.” (R. 31.)
In both her brief in support of plaintiff’s request for review and her objections to the
magistrate’s report, the plaintiff focuses on the ALJ’s acceptance of plaintiff’s statements as
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“generally entirely credible.” However, the plaintiff forwards different arguments in each
discussion regarding this issue. Unfortunately, both of plaintiff’s arguments are unavailing.
Plaintiff first argues in her brief that, once the ALJ accepted plaintiff’s statements as
“generally entirely credible,” she should have found plaintiff disabled “based upon the testimony
of the vocational expert.” (Pl. Br. 17.) At the hearing, the ALJ asked the vocational expert, if he
were to credit the plaintiff’s testimony that day, whether the plaintiff would be able resume her
past work. (R. 68.) The vocational expert answered in the negative, citing the plaintiff’s
statement regarding her heavy menstruation. (R. 68-69.) Given this exchange, the plaintiff
argues that finding her testimony “generally entirely credible,” must result in a finding of
disability. (Pl. Br. 17.) This argument is easily dismissed, because it ignores the fact that it is the
ALJ, and not the vocational expert, who makes the ultimate decision regarding disability. A
vocational expert’s opinion on disability does not bind the ALJ.
Thereafter, plaintiff argues in her objections to the magistrate’s report and
recommendation that the ALJ’s finding that plaintiff’s testimony was “generally entirely
credible,” allows the ALJ to, essentially, sidestep the weighing of necessary factors when
determining plaintiff’s credibility. (Pl. Obj. 9-10.) As the plaintiff notes, the magistrate judge
acknowledged that the statement was “confusing” and determined that the ALJ found some of
the plaintiff’s statements credible, while others were not. (Pl. Obj. 9.) Given that, the plaintiff
argues that the ALJ did not do the necessary weighing of plaintiff’s credibility before denying
disability. However, the plaintiff fails to offer any support from the record for this argument.
Contrary to the plaintiff’s claim, the ALJ did assess the plaintiff’s credibility in her RFC
determination. The ALJ considered “claimant’s statements regarding symptoms and their effects
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on function, her medical history, the character of her symptoms, her activities of daily living, the
type of treatment she received, other measures she has taken to relieve symptoms, and her
response to treatment” (R. 30.) As noted above, the ALJ weighed the plaintiff’s daily activities,
GAF scores, the routine and conservative nature of her mental health treatment, the patient’s lack
of intensive outpatient or inpatient care, and the state agency psychologist’s findings, when
making her RFC and disability determination. The ALJ’s findings are sufficient to establish
substantial evidence in support of her determination that the plaintiff possessed the necessary
RFC to return to previous work.
Plaintiff’s arguments that the ALJ erred in her treatment of Dr. Mittleman’s MSS
opinion, and the plaintiff’s own testimony are unavailing. The ALJ has offered substantial
evidence to support her RFC and disability finding, with an analysis that is internally consistent
and consistent with the case record.
III.

Conclusion
For the reasons set forth above, I will overrule plaintiff’s objections to the report and

recommendation, and affirm the decision of the Commissioner to deny McClease supplemental
security income. An appropriate order follows.

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