WIDHSON v. BURWELL et al

Filing 16

ORDERED THAT JUDGMENT IS ENTERED REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY FOR THE PURPOSES OF THIS REMAND ONLY AND THE RELIEF SOUGHT BY PLAINTIFF IS GRANTED TO THE EXTENT THAT THE MATTER IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS ADJUDICATION; AND THE CLERK OF COURT IS HEREBY DIRECTED TO MARK THIS CASE CLOSED. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 7/13/21. 7/14/21 ENTERED AND COPIES E-MAILED.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DANIEL TAD WIDHSON
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security 1

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CIVIL ACTION

NO. 20-3343

MEMORANDUM AND ORDER
ELIZABETH T. HEY, U.S.M.J.

July 13, 2021

Daniel Tad Widhson (“Plaintiff”) seeks review of the Commissioner’s decision
denying his applications for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”). For the reasons that follow, I conclude that the decision of the
Administrative Law Judge (“ALJ”) is not supported by substantial evidence and remand
for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
I.

PROCEDURAL HISTORY
Plaintiff filed for DIB and protectively filed for SSI on July 25, 2017, tr. at 78, 94,

178-79, 180-81, alleging that his disability began on November 24, 2016, as a result of
autism, post-traumatic stress disorder (“PTSD”), possible bipolar disorder, depressive
disorder, anxiety disorder, and asthma. Id. at 199. Plaintiff’s applications for benefits
were denied initially, id. at 110-14, 115-19, and Plaintiff requested a hearing before an
ALJ, id. at 123-24, 125-26, which took place on April 18, 2019. Id. at 35-77. On July 5,
Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9,
2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Ms. Kijakazi
should be substituted for the former Commissioner of Social Security, Andrew Saul, as
the defendant in this action. No further action need be taken to continue this suit
pursuant to section 205(g) of the Social Security Act. 42 U.S.C. § 405(g).
1

2019, the ALJ found that Plaintiff was not disabled. Id. at 16-27. The Appeals Council
denied Plaintiff’s request for review on June 19, 2020, id. at 1-3, 2 making the ALJ’s July
5, 2019 decision the final decision of the Commissioner. 20 C.F.R. §§ 404.981,
416.1472.
Plaintiff commenced this action in federal court on July 6, 2020, Doc. 1, and the
matter is now fully briefed and ripe for review. Docs. 13 & 14. 3
II.

LEGAL STANDARD
To prove disability, a claimant must demonstrate an “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for . . . not less than twelve
months.” 42 U.S.C. § 423(d)(1). The Commissioner employs a five-step process,
evaluating:
1.
Whether the claimant is currently engaged in
substantial gainful activity;
2.
If not, whether the claimant has a “severe
impairment” that significantly limits his physical or mental
ability to perform basic work activities;
3.
If so, whether based on the medical evidence,
the impairment meets or equals the criteria of an impairment
Although the Notice of Appeals Council Action is undated, see tr. at 1, a related
order and the Index indicate that the Appeals Council denied review on June 19, 2020.
See id. at 5; Court Transcript Index.
2

Defendant consented to magistrate judge jurisdiction pursuant to 28 U.S.C.
§ 636(c). See Standing Order, In RE: Direct Assignment of Social Security Appeal
Cases to Magistrate Judges (Pilot Program) (E.D. Pa. Sept. 4, 2018). Plaintiff is deemed
to have consented based on his failure to file the consent/declination form and the notices
advising him of the effect of not filing the form. Docs. 2, 4 & 6.
3

2

listed in the listing of impairments (“Listings”), 20 C.F.R. pt.
404, subpt. P, app. 1, which results in a presumption of
disability;
4.
If the impairment does not meet or equal the
criteria for a listed impairment, whether, despite the severe
impairment, the claimant has the residual functional capacity
(“RFC”) to perform his past work; and
5.
If the claimant cannot perform his past work,
then the final step is to determine whether there is other work
in the national economy that the claimant can perform.
See Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014); see also 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4). Plaintiff bears the burden of proof at steps one through
four, while the burden shifts to the Commissioner at the fifth step to establish that the
claimant is capable of performing other jobs in the local and national economies, in light
of his age, education, work experience, and RFC. See Poulos v. Comm’r of Soc. Sec.,
474 F.3d 88, 92 (3d Cir. 2007).
The court’s role on judicial review is to determine whether the Commissioner’s
decision is supported by substantial evidence. 42 U.S.C. § 405(g); Schaudeck v. Comm’r
of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). Therefore, the issue in this case is
whether there is substantial evidence to support the Commissioner’s conclusion that
Plaintiff is not disabled. Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion,” and must be “more than a mere
scintilla.” Zirnsak, 777 F.2d at 610 (quoting Rutherford v. Barnhart, 399 F.3d 546, 552
(3d Cir. 2005)). The court has plenary review of legal issues. Schaudeck, 181 F.3d at
431.
3

III.

DISCUSSION
A.

ALJ’s Findings and Plaintiff’s Claims

The ALJ found that Plaintiff suffered from the severe impairments of obesity,
autism/Asperger’s disorder, mood disorder/depression, anxiety, and PTSD. Tr. at 18. In
addition, the ALJ found that Plaintiff suffers from the non-severe impairments of asthma,
fatty liver, hypothyroidism, psoriasis, right wrist sprain, and diplopia, the impact of
which the ALJ considered throughout the disability determination process. Id. at 18-19.
The ALJ also found that there were no medically determinable impairments to explain
Plaintiff’s complaints of left knee and low back pain, and that there was never a firm
diagnosis of obsessive-compulsive disorder. Id. at 19. The ALJ next found that Plaintiff
did not have an impairment or combination of impairments that met the Listings, id., and
that Plaintiff retained the RFC to perform medium work with the following limitations:
frequently climb ramps and stairs, balance, and stoop; occasionally kneel, crouch, and
crawl; never climb ladders, ropes, or scaffolds; occasionally be exposed to work
involving unprotected heights, moving mechanical parts, operating a motor vehicle,
humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme cold, and extreme
heat; can only perform, use judgment, and tolerate occasional changes in a routine work
setting defined as that consistent with routine and repetitive tasks, and can only have
occasional interaction with supervisors, coworkers, and the public. Id. at 20. The ALJ
then found that Plaintiff could not perform his past relevant work as an automobile selfserve station attendant. Id. at 25. Finally, based on the testimony of a vocational expert
(“VE”), the ALJ found that jobs exist in significant numbers in the national economy that
4

Plaintiff can perform, including warehouse worker, hand packager, and laundry laborer.
Id. at 26.
Plaintiff claims that the ALJ erred in failing to (1) accord proper weight to
Plaintiff’s treating psychiatrist, (2) accord proper weight to Plaintiff’s testimony and that
of his mother, and (3) find that Plaintiff met Listing 12.10. Doc. 13 at 8-14. 4 Defendant
responds that the ALJ correctly considered the evidence offered by Plaintiff’s psychiatrist
and the Listing determination is supported by substantial evidence. Doc. 15 at 4-14. 5
B.

Plaintiff’s Claimed Limitations

Plaintiff was born on May 9, 1994, making him 23 years old at the time of his
applications and 25 years old at the time of the ALJ’s decision. Tr. at 178, 180. He
completed one year of college and worked as a self-service gas station attendant until
November 2016. Id. at 40-42.
At the administrative hearing, Plaintiff explained that he suffers from “[t]errible
social anxiety,” has urges of hurting himself, and suffers from chronic insomnia. Tr. at
42. Plaintiff testified that he has met up monthly with 6 -to- 15 high school friends to
play video games, but recently finds that he does not stay long before returning home. Id.
at 46. When he gets “very intrusive thoughts” of hurting himself or a panic attack, he

Other than the administrative record, for which I will utilize its own pagination,
for pinpoint page references to documents filed in this court I will refer to the Court’s
ECF pagination. I have reordered Plaintiff’s arguments for ease of discussion, to address
the ALJ’s consideration of the evidence before addressing the Listing.
4

Defendant addresses Plaintiff’s testimony and that of his mother as part of
Defendant’s discussion of Listing 12.10. Doc. 15 at 6-10.
5

5

takes Xanax. Id. at 49-50. 6 Plaintiff explained that he has voluntarily committed himself
to the Horsham Clinic when he had thoughts of self-harm with pens, pencils, and kitchen
utensils. Id. at 50. His parents lock the knives away when he visits and cover the utensils
when they go out to eat. He described the panic attacks where he starts pacing and
making weeping sounds and curls up in a ball. Id. at 54. Plaintiff spends much of his
time playing various video and on-line games, and keeps a game player nearby in case he
feels overwhelmed. Id. at 48-49, 57.
Plaintiff testified about incidents of rage when he was in high school, chasing a
classmate around the gymnasium who had hit him with a basketball, and throwing a desk
at another student. Tr. at 51. More recently, when feeling like he was being betrayed by
his friends, he “ripped [his] headset in half and broke [his] desk in half.” Id. at 51. When
he was working and felt anxious, he would call his parents and yell at them for upwards
of 30 minutes and threaten suicide. Id. at 52. Once when he got angry at his mother, he
“snapped and screamed and punched a hole through [his] [f]ather’s basement stair wall.”
Id. at 53. At one point Plaintiff got a therapy cat, but he was overwhelmed with fear that
he was going to hurt the cat and had to give it up after just a few days. Id. at 54.
Plaintiff claims that his depression makes him distrustful and makes him question
his place in the world. Tr. at 55. At times the depression makes him forget to take his
medication. Id. Two to four days a week, he does not get out of bed. Id. at 56. Being
around children causes post-traumatic flashbacks. Id.

Plaintiff listed other medications as well, tr. at 49, which I will summarize when
reviewing the medical records.
6

6

Plaintiff’s mother, Deborah Schwabe, also testified at the hearing, explaining that
prior to Plaintiff’s move to South Carolina, she had gotten him an apartment to see if he
could live independently. Tr. at 61. 7 She lived there half of the week, but it did not work
out and he moved back to his father’s house. Id. at 61-62. Then she made arrangements
for him to move in with a friend in South Carolina, all the while she was handling all the
bills. Id. at 62. Although Plaintiff had a job at the self-service gas station, his mother
reported that he would call her multiple times a week during his shift to vent, by yelling
at her until she could “talk him down.” Id. at 62-63. During that time, she saw a
deterioration in his mental health. Id.
When she relocated him back home, within a mile of his father’s house, she made
sure that he had a support system nearby. Tr. at 64. She testified, however, that he
continued to deteriorate more to the point that he could not have spoons, knives, forks,
pens or pencils in house for fear of self-harm. Id. at 64. She described his depression as
“overwhelming,” noting that he would stay in bed all day and always talked about hurting
himself. Id. She also related that in fits of anger he had broken a gaming headset, a desk,
and a gaming system he “split in half,” and instances where he “flipped out” in reaction
to seemingly minor problems. Id. at 65-67.
He continues to call her three or four times a week at “all hours of the night.” Tr.
at 69. When asked if there was any job he could perform, she explained that she was

Plaintiff moved to South Carolina in October 2014, and returned in December
2016. Tr. at 287.
7

7

concerned with his “stability” and said that she did not think “he has the stability to stick
with something because he’s constantly breaking down.” Id. at 68, 69.
C.

Summary of the Medical Record 8

The medical record includes treatment notes from Plaintiff’s primary care group,
Doylestown Health, which indicate that prior to his claimed disability onset date he was
treated for anxiety with Celexa and was prescribed Xanax for situational issues. 9 Tr. at
282. When Plaintiff returned from South Carolina in December 2016 (roughly coincident
with the alleged onset date of November 24, 2016), Michael Barmach, M.D., noted that
Plaintiff denied any significant depression symptoms, but still had regular anxiety
including impulsive urges to gouge his eyes out for which he continued to take Celexa
daily and Xanax less than once a week. Id. at 287.
On December 21, 2016, Plaintiff began treatment at the Penn Foundation for
anxiety and depressive thoughts. Tr. at 309-17. Charlotte Batcha, L.C.S.W., noted that
Plaintiff’s memory and concentration/attention were impaired, he had a good mood, his
thought form was illogical and tangential with flight of ideas and paranoid delusions, and
he had self-injurious thoughts and obsessions/compulsions evidenced by video games.

Because Plaintiff’s claims focus primarily on his mental health impairments, I
will focus on the records relevant to the assessment of those impairments. With respect
to his diagnosis of obesity, Plaintiff is approximately 5 feet 10 inches tall and weighs
approximately 340 pounds. Tr. at 314
8

Celexa (generic citalopram) is an antidepressant. See
https://www.drugs.com/celexa.html (last visited June 29, 2021). Xanax (generic
alprazolam) is a benzodiazepine used to treat anxiety disorders and anxiety caused by
depression. See https://www.drugs.com/xanax.html (last visited June 29, 2021).
9

8

Id. at 312. Ms. Batcha’s notes indicate that Plaintiff got confused with his medication,
taking Xanax regularly when he was supposed to be taking Celexa. Id. at 309. She noted
that he was abused by extended family from age 4, when his mother left, through age 14
or 15. Id. at 315. She diagnosed Plaintiff with generalized anxiety disorder (“GAD”), 10
depressive disorder NOS (not otherwise specified), 11 and autistic disorder. 12 Id. at 317.
Plaintiff requested individual therapy rather than group therapy due to his anxiety and
poor social skills. Id. at 318.
George Ehrhorn, M.S.N., a certified registered nurse practitioner at the Penn
Foundation, evaluated Plaintiff on January 13, 2017. Tr. at 307-08. Plaintiff reported to
Mr. Ehrhorn that his concentration and motivation were poor, his memory “is awful,” and
“The key features of [GAD] are persistent and excessive anxiety and worry
about various domains, including work and school performance, that the individual finds
difficult to control. In addition, the individual experiences physical symptoms including
restlessness or feeling keyed up or on edge; being easily fatigued; difficulty concentrating
or mind going blank; irritability; muscle tension; and sleep disturbance.” Diagnostic and
Statistical Manual of Mental Disorders, 5th ed. (2013) (“DSM 5”), at 190.
10

Unspecified depressive disorder “applies to presentations in which symptoms
characteristic of a depressive disorder that cause clinically significant distress or
impairment in social, occupational, or other important areas of functioning dominate but
do not meet the full criteria for any of the disorders in the depressive disorders diagnostic
class.” DSM 5 at 184.
11

“Autism spectrum disorder is characterized by persistent deficits in social
communication and social interaction across multiple contexts, including deficits in
social reciprocity, nonverbal communicative behaviors used for social interaction, and
skills in developing, maintaining, and understanding relationships. In addition to the
social communication deficits, the diagnosis of autism spectrum disorder requires the
presence of restricted, repetitive patterns of behavior, interest, or activities.” DSM 5 at
31. Plaintiff reported to Ms. Batcha that he was diagnosed with Asperger’s disorder in
2008 or 2009 after a fight in school. Tr. at 309. Autism spectrum disorder encompasses
Asperger’s disorder. DSM 5 at 53.
12

9

he had no energy. Tr. at 307. Plaintiff also reported a problem going to and staying
asleep. Id. Plaintiff explained that before Christmas, he had taken his Xanax instead of
his antidepressant and “had a really bad breakdown.” Id. On Mental Status Examination
(“MSE”), Mr. Ehrhorn noted that Plaintiff was calm, his memory, attention,
concentration, and language were intact, and his thought form was tangential, with fair
insight and judgment. Id. at 308. He prescribed Risperdal 13 to help with Plaintiff’s
paranoia and anxiety. Id. In May, Abilify 14 was also added to the medication regimen.
Id. at 303. Plaintiff’s May 2017 Treatment Plan indicated diagnoses of GAD, depressive
disorder, NOS, autistic disorder, and PTSD.15 Id. at 304.
Plaintiff was voluntarily admitted to the Horsham Clinic on April 4, 2017, with
“ruminative thoughts of fears that he would kill himself.” Tr. at 319. During his weeklong admission, he was diagnosed with an unspecified mood disorder and a history of
Asperger’s disorder. Id. The Discharge Summary noted that he was less depressed and
impulsive, and had less fear that he might harm himself during his hospitalization. Id. at

Risperdal (generic risperidone) is an antipsychotic used to treat schizophrenia
and symptoms of bipolar disorder. See https://www.drugs.com/risperdal.html (last
visited June 29, 2021).
13

Abilify (generic aripiprazole) is an antipsychotic used to treat schizophrenia and
bipolar 1 disorder. See https://www.drugs.com/abilify.html (last visited June 29, 2021).
14

The essential feature of PTSD is the development of characteristic symptoms
following exposure to one or more traumatic events, as well as persistent avoidance of
stimuli associated with the traumatic event(s). DSM 5 at 274-75.
15

10

320. He was discharged on April 10, 2017, with prescriptions for citalopram and
risperidone, and continued on a Ventolin inhaler for his asthma. 16 Id.
On April 21, 2017, Robert J. Grabowski, D.O., at Doylestown Health, diagnosed
Plaintiff with a moderate episode of recurrent major depressive disorder (“MDD”) 17 and
noted that Plaintiff was under the care of a Dr. George at the Penn Foundation. Id. at
297-98. 18
On June 22, 2017, Scott Harman, M.D., a psychiatrist at the Penn Foundation,
noted that Plaintiff experienced a recent “melt down” after a flashback brought on by his
personal items being broken after being given to his step-mother’s grandchildren. Tr. at
349. The doctor noted that Plaintiff’s medication adherence/response was fair. Id. On
MSE, Dr. Harman found that Plaintiff’s affect was congruent and constructed/detached,
memory, attention and concentration were intact, thought form was logical, and insight
and judgment were fair. Id. at 350. The doctor continued Plaintiff on Abilify,
Lamictal, 19 and Xanax for severe anxiety. Id. On July 11, 2017, Dr. Harman noted that

Ventolin (generic albuterol) is a bronchodilator used to treat and prevent
bronchospasm. See https://www.drugs.com/ventolin.html (last visited June 29, 2021).
16

The essential feature of MDD is a clinical course that is characterized by one or
mor major depressive episodes. DSM 5 at 160-61. A major depressive episode is a
period of at least two weeks during which there is either depressed mood or the loss of
interest or pleasure in nearly all activities. Id. at 163.
17

Presumably “Dr. George” refers to nurse practitioner George Ehrhorn.

18

Lamictal (generic lamotrigine) is an anticonvulsant used to treat epileptic
seizures and to delay mood episodes in adults with bipolar disorder. See
https://www.drugs.com/lamictal.html (last visited June 29, 2021).
19

11

Plaintiff was very restless, was having trouble sleeping, and had increased impulses for
self-harm. Id. at 351. On MSE, Dr. Harman noted that Plaintiff endorsed suicidal
ideation. Id. at 352. The doctor discontinued Abilify and added Zyprexa. 20 Id. On July
20, 2017, Plaintiff reported that he was sleepy on Zyprexa, but had decreased impulses
and akathisia. 21 Id. at 353. On August 10, 2017, Plaintiff reported feeling better on
Zyprexa. Id. at 355. On MSE, Dr. Harman noted that his affect was congruent and
constricted and his mood was anxious. Id. at 356.
Plaintiff was again voluntarily admitted to the Horsham Clinic on August 27,
2017, with complaints of mood instability with thoughts of harming himself by poking
himself in the eye and aggression towards others. Tr. at 321. He was diagnosed with
unspecified mood disorder, autism spectrum disorder, and a rule out diagnosis of
obsessive-compulsive disorder (“OCD”). 22 Id. Plaintiff remained on Lamictal, Xanax
and Zyprexa, and the attending psychiatrist added Luvox 23 for Plaintiff’s OCD-like traits.
Zyprexa (generic olanzapine) is an antipsychotic used to treat schizophrenia and
bipolar disorder. See https://www.drugs.com/zyprexa.html (last visited June 29, 2021).
20

Akathisia is “a condition of motor restlessness in which there is a feeling of
muscular quivering, an urge to move about constantly, and an inability to sit still.”
Dorland’s Illustrated Medical Dictionary, 32nd ed. (2012) (“DIMD”), at 42.
21

“OCD is characterized by the presence of obsessions and/or compulsions.
Obsessions are recurrent and persistent thoughts, urges, or images that are experienced as
intrusive and unwanted, whereas compulsions are repetitive behaviors or mental acts that
an individual feels driven to perform in response to an obsession or according to rules
that must be applied rigidly.” DSM 5 at 235 (emphasis in original).
22

Luvox (generic fluvoxamine) is an antidepressant used to treat social anxiety
disorder and OCD involving recurring thoughts or actions. See
https://www.drugs.com/mtm/luvox.html (last visited June 29, 2021).
23

12

Id. at 322. He was discharged on September 6, 2017, with a “brighter affect and was no
longer endorsing violent ideations.” Id. at 323.
When Plaintiff returned to the Penn Foundation on September 28, 2017, he
reported to Dr. Harman that he had some improvement after his discharge from Horsham
Clinic. Tr. at 357. His mood was stable, affect remained congruent and constructed,
memory, attention, and concentration were intact, insight was fair to limited, and
judgment was fair. Id. at 358. Dr. Harman noted chronic insomnia and prescribed
Ambien. 24 Id. at 359. Plaintiff’s insomnia complaints persisted when he saw Dr.
Harman on October 26, 2017, and he reported urges to self-harm and an obsessive
ideation to “gouge [his] eyes out.” Id. at 360. The doctor planned to discontinue Ambien
and start Lunesta. 25 Id. at 361.
Plaintiff continued seeing Dr. Harman at least monthly (at times bi-weekly
depending on his symptoms) through February 2019. Tr. at 362-98. During this time, he
had complaints of insomnia and intrusive thoughts of self-harm that waxed and waned,
and Dr. Harman would titrate or change medications in an effort to decrease these
symptoms. See, e.g., id. at 362-63 (11/16/17 - increasing intrusive thoughts of self-harm,
increase Luvox), 364-66 (11/30/17 - aggressive/self-harmful thoughts, increase Zyprexa
and taper Luvox), 367-68 (12/14/17 – decreased thoughts of self-harm with tapering of

Ambien (generic zolpidem) is a sedative used to treat insomnia. See
https://www.drugs.com/ambien.html (last visited June 29, 2021).
24

Lunesta (generic eszopiclone) is a sedative used to treat insomnia. See
https://www.drugs.com/lunesta.html (last visited June 29, 2021).
25

13

Luvox, discontinue Ambien and try Lunesta for insomnia), 373-74 (2/2/18 - increased
impulses for self-harm/destruction of property, titrate Zoloft 26), 375 (3/29/18 – negative
encounter with people but stopped taking medication for two weeks prior), 379-80
(5/18/18 – picture of a knife provoke urge for self-harm, increase Wellbutrin 27), 383-84
(8/10/18 - more anxious without Zyprexa which was stopped due to urinary hesitancy,
restart Zyprexa because urinary hesitancy continued while off Zyprexa), 28 385-86
(8/24/19 – intrusive thoughts including thought of biting off little finger, increase
Zyprexa), 389-90 (10/19/18 – trial of Remeron 29 resulted in irritable, agitated feelings,
prescribed Prozac 30), 391-92 (11/16/18 – Prozac resulted in feeling of constant
depression, no motivation and MSE indicated obsessions/compulsions for self-harm,
retry Zoloft), 397 (2/22/19 – thoughts of self-harm after not taking medication for several
days).

Zoloft (generic sertraline) is an antidepressant used to treat depression, OCD,
panic disorder, anxiety disorders, and PTSD. See https://www.drugs.com/zoloft.html
(last visited June 29, 2021).
26

Wellbutrin (generic bupropion) is an antidepressant used to treat MDD and
seasonal affective disorder. See https://www.drugs.com/wellbutrin.html (last visited June
29, 2021).
27

Treatment notes from Doylestown Health also evidence complaints of urination
hesitancy and frequency beginning on April 13, 2018. Tr. at 410.
28

Remeron (generic mirtazapine) is an antidepressant used to treat MDD. See
https://www.drugs.com/remeron.html (last visited June 29, 2021).
29

Prozac (generic fluoxetine) is an antidepressant used to treat MDD, bulimia
nervosa, OCD, and panic disorder. Prozac is also used in conjunction with Zyprexa to
treat manic depression caused by bipolar disorder. See
https://www.drugs.com/prozac.html (last visited June 29, 2021).
30

14

Plaintiff began individual psychotherapy with Daniel Stahlberger, M.Ed., in
February 2019. Tr. at 395. 31 Plaintiff reported that he had gone off his medication for
four days and wanted to hurt himself, “but got back on his meds and things are fine.” Id.
On March 1, 2019, Plaintiff again reported going off his medications, but planned to take
them after the session. Id. at 399. The therapist noted that Plaintiff was making slight
progress, but the loss of a close friend could have caused some anxiety/depression. Id. at
400. On March 8, 2019, Mr. Stahlberger noted that Plaintiff had moderate social anxiety,
but was making slight progress. Id. at 402.
On March 15, 2019, Dr. Harman completed a Mental Impairment Questionnaire,
with diagnoses of unspecified mood disorder, unspecified anxiety disorder with panic
episodes, and borderline personality traits, noting that Plaintiff suffers from chronic and
obsessive urges to harm himself, compulsory unwanted impulses, anxiety, fearfulness,
the feeling that he cannot trust himself around any sharp objects, and
constricted/detached affect. Tr. at 403. The doctor found that Plaintiff had marked
limitations in activities of daily living and deficiencies in concentration, persistence or
pace, and extreme limitation in social functioning. 32 Id. at 405. The doctor also indicated
Although Dr. Harman noted that Plaintiff was beginning peer support therapy in
February 2018, see tr. at 373, and Mr. Stahlberger made reference to Plaintiff’s report
that he worked with peer support through the Penn Foundation, see id. at 395, no such
notes appear in the record.
31

The Questionnaire form had a four-point scale: None-mild, Moderate, Marked,
or Extreme. Tr. at 405. The only definition for these categories was “marked,” which
“means more than moderate but less than extreme. A marked limitation my [sic] arise
when several activities or functions are impaired or even when only one is impaired, so
long as the degree of limitation is such as to seriously interfere with the ability to function
independently, appropriately, effectively, and on a sustained basis.” Id.
32

15

that Plaintiff had 1 or 2 episodes of decompensation in the prior 12-month period, each
lasting at least 2 weeks in duration, and that he was unable to sustain employment. Id. at
405, 406.
Amanda Kochan-Dewey, Psy.D., conducted a Mental Status Evaluation on
October 2, 2017. Tr. at 324-27. At that time, Plaintiff reported showering once or twice
a week, dressing daily, preparing food, cleaning, and shopping. Id. at 326. He also
reported playing video games, talking online, and watching cartoons. Id. On MSE, Dr.
Kochan-Dewey found that Plaintiff’s thought processes were coherent and goal directed;
affect was restricted; mood was neutral; attention and concentration were intact; recent
and remote memory were intact; and insight and judgment were good. Id.
Dr. Kochan-Dewey diagnosed Plaintiff with unspecified depressive disorder and
PTSD, and found that he had no limitations in the abilities to understand, remember, and
carry out instructions. Tr. at 326, 328. 33 She determined that Plaintiff had mild
impairment in his ability to interact appropriately with co-workers, supervisors, and the
The scale in the form pertains to the mental health Listings, which were revised
effective January 17, 2017. See “Revised Medical Criteria for Evaluating mental
Disorders,” 81 Fed. Reg. 66138-01 (Sept. 26, 2016). An ALJ is to use the Listings in
effect at the time of his or her decision. Id. (“When the final rules become effective, we
will apply them to new applications filed on or after the effective date of the rules, and to
claims that are pending on or after the effective date.”). Therefore, the revised mental
health listings are applicable in this case. The form utilized by Dr. Harman refers to the
categories contained in the “B Criteria” prior to the revision. The relevant Listing will be
discussed further below. Infra at 29-30.
The form defined “None” as “[a]ble to function in this area independently,
appropriately, effectively, and on a sustained basis.” Tr. at 328. “Mild” limitation was
defined as “[f]unctioning in this area independently, appropriately, effectively, and on a
sustained basis is slightly limited.” Id.
33

16

public, and respond appropriately to usual work situations and to changes in a routine
work setting. Id. at 329. The doctor stated that Plaintiff’s impairment did not affect his
ability to concentrate, persist, maintain pace, or to adapt or manage himself. Id.
At the initial determination stage, Francis Murphy, Ph.D., found from a review of
the records that Plaintiff suffered from depressive, bipolar, and related disorders and
autism spectrum disorder. Tr. at 84. Dr. Murphy found that Plaintiff had mild limitation
in his ability to understand, remember or apply information, and moderate limitation in
his abilities to interact with others, concentrate, persist, or maintain pace, and adapt or
manage oneself. Id. Specifically, Dr. Murphy found no understanding or memory
limitations, but a moderate limitation in the ability to maintain attention and
concentration for extended periods. Id. at 89. The doctor also found Plaintiff moderately
limited in his ability in his abilities to interact appropriately with the general public, to
accept instructions and respond appropriately to criticism from supervisors, and to
maintain socially appropriate behavior and adhere to basic standards of neatness and
cleanliness. Id. at 90. Finally, in the area of adaptation limitations, the doctor found
Plaintiff moderately limited in his ability to set realistic goals and make plans
independently of others. Id.
With respect to physical limitations at the initial consideration stage, on November
14, 2017, Crescenzo Calise, M.D., determined that Plaintiff could occasionally lift and/or
carry 50 pounds, and frequently lift and/or carry 25 pounds, stand for 6 hours, and sit for
6 hours in an 8-hour workday. Tr. at 86. Dr. Calise also concluded that Plaintiff should
never climb ladders, ropes or scaffolds, could occasionally crawl, and should avoid
17

concentrated exposure to extreme cold, heat, humidity, fumes, odors, dusts, gases, poor
ventilation, and hazards. Id. at 87-88.
Ziba Monfared, M.D., conducted an Internal Medicine Examination on October
30, 2017, and found that Plaintiff’s physical abilities were limited by his obesity and
asthma, resulting in limitations to occasional kneeling or crouching and frequent
crawling, and occasional exposure to humidity and wetness, dust, odors, fumes, and
pulmonary irritants, and extreme cold and extreme heat. Tr. at 332-41.
D.

Plaintiff’s Claims
1.

Consideration of Plaintiff’s Subjective Complaints and Testimony
from his Mother

Relying on Ninth Circuit caselaw, Plaintiff argues that the ALJ failed to properly
consider his testimony and that offered by his mother. Doc. 13 at 12-13 (citing Fair v.
Bowen, 885 F.2d 597 (9th Cir. 1989); Morgan v. Comm’r of Soc. Sec., 169 F.3d 595 (9th
Cir. 1999)). Plaintiff also argues that the ALJ “selectively misinterpreted the testimony
of Plaintiff and his mother in reaching his improper determination.” Id. at 13. Defendant
responded to this allegation in addressing the ALJ’s consideration of the relevant Listing,
arguing that the evidence belies Plaintiff’s testimony concerning the severity of his
mental health symptoms and his mother’s assertion that he is unable to live
independently. Doc. 14 at 7.
With regard to evaluating a claimant’s subjective symptoms, the regulations
require consideration of all symptoms and the extent to which such symptoms are
reasonably consistent with the objective medical and other evidence, including the
18

claimant’s statements and descriptions from medical and non-medical sources regarding
how the symptoms affect the claimant’s activities of daily living and ability to work. 20
C.F.R. §§ 404.1529(a), 416.929(a). The regulations make clear that statements about a
claimant’s pain or other symptoms cannot alone establish a disability, but instead there
must be objective medical evidence from an acceptable medical source that shows the
presence of an impairment that could reasonably be expected to produce the symptoms
alleged and that, when considered with all the other evidence, would lead to a disability
determination. Id.
Social Security Ruling 16-3p provides guidance about how the Commissioner will
evaluate statements regarding the intensity, persistence, and limiting effects of symptoms
in disability claims. See S.S.R. 16-3p, “Titles II and XVI: Evaluation of Symptoms in
Disability Claims,” 2016 WL 1119029 (Mar. 16, 2016). The Ruling directs an ALJ to
conduct a two-step process to (1) determine whether the claimant has a medically
determinable impairment that could reasonably be expected to produce the claimant’s
alleged symptoms, and (2) evaluate the intensity and persistence of the claimant’s
symptoms such as pain and determine the extent to which they limit his ability to perform
work-related activities. Id. at *3-5.
Third Circuit case law does not require an ALJ to accept a plaintiff’s complaints
concerning his symptoms, but rather requires that they be considered. See Chandler v.
Comm’r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011). An ALJ may disregard
subjective complaints when contrary evidence exists in the record, see Mason v. Shalala,
994 F.2d 1058, 1067-68 (3d Cir. 1993), but must explain why he rejects such complaints
19

with references to the medical record. See Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir.
1999) (“Allegations of pain and other subjective symptoms must be supported by
objective medical evidence.”); Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990) (ALJ
may reject claim of disabling pain where he has considered subjective complaints and
specified reasons for rejecting claims). In addition to objective medical evidence, in
evaluating the intensity and persistence of pain and other symptoms, the ALJ should
consider the claimant’s daily activities; location, duration, frequency and intensity of
pain; precipitating and aggravating factors; type, dosage, effectiveness, and side effects of
medications; treatment other than medication; and other measures the claimant uses to
address the pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
Here, Plaintiff testified about urges to inflict harm on himself, tr. at 42, 50, 51, 56,
anger outbursts id, at 51, 53, calling his parents to vent and threatening to kill himself, id.
at 52, and panic attacks where he acted like a scared animal. Id. at 55. In addition, he
testified that due to his depression he sometimes does not get out of bed and forgets to
take his medication. Id. at 55. Plaintiff’s mother reiterated many of these symptoms
based on her own observation. Id. at 62-68. In addition, she also described her failed
attempt to have Plaintiff live independently during which she lived with him half the
week, id. at 61, his living arrangements in South Carolina during which she saw a
deterioration in his mental health, id. at 62, and his return to this area, after which she
saw him “deteriorate more and more,” staying in bed all day and determining that he had
an inability to have spoons, knives and forks in the house due to a fear of self-harm. Id.

20

at 64. Despite her efforts to give her son independence, Ms. Schwabe testified that she
handled his bills and did his grocery shopping when he was local. Id. at 62.
Although the ALJ acknowledged that Plaintiff “has significant mental health
issues that have imposed some functional limitations,” he found that Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of [his] symptoms
are not entirely consistent with the medical evidence and other evidence in the record.”
Tr. at 21. In support of his finding, the ALJ partially relied on the consultative
examination conducted by Dr. Kochan-Dewey, who found Plaintiff’s attention,
concentration, and memory intact; his cognitive functioning average; insight and
judgment good; thought processes coherent and goal directed with no hallucinations or
delusions; motor behavior normal; speech fluent; and eye contact appropriate. Id. at 2223 (citing id. at 326). The ALJ also noted that subsequent to the consultative
examination, the treatment notes from the Penn Foundation “revealed a normal [MSE] at
his baseline level.” Id. at 23. 34
The ALJ did not adequately consider Plaintiff’s or his mother’s testimony. First,
the ALJ’s characterization of the MSE subsequent to the consultative examination as
“normal” is a mischaracterization of the evidence, undermining the ALJ’s reliance on
those records to discount the testimony. The November 16, 2017 treatment notes from

It is unclear whether the ALJ was referring to a single MSE from the Penn
Foundation visit closest in proximity to the consultative examination or multiple MSEs
following the consultative examination, in general. In either event, as will be discussed,
the subsequent MSEs were not “normal” as they evidenced Plaintiff’s intrusive thoughts
and compulsions/urges for self-harm.
34

21

the Penn Foundation, the first after Plaintiff’s examination by Dr. Kochan-Dewey, do not
support rejection of Plaintiff’s and his mother’s testimony. Dr. Harman noted Plaintiff’s
reports of increased intrusive thoughts of self-harm, specifically thoughts of stabbing
himself or gouging out his eyes, and that Plaintiff’s attempt to get a therapy cat failed
because it “induced excess fears/worries.” Tr. at 362. “[Plaintiff] presenting dramatic
negative thinking, with isolated affect.” Id. The MSE that the ALJ categorized as normal
included disheveled appearance, anxious mood, incongruent, constricted and detached
affect, endorsing self-injurious thoughts and obsessions/compulsions including gouging
out his eyes and fears of self-injury, negative and dramatic thoughts, and poor insight. Id.
at 363. Moreover, review of all of Dr. Harman’s treatment notes reveals chronic suicidal
thoughts or thoughts of self-harm, and abnormalities in his mood and/or affect. See id. at
352 (7/11/17 – suicidal ideation, disheveled, sad mood and constricted affect), 361
(10/26/17 – self-injurious thoughts, obsessions/compulsions, including gouging his eyes
or stabbing self, affect constricted), 363 (11/16/17 - self-injurious thoughts,
obsessions/compulsions fears of self-injury, anxious mood, detached and constricted
affect), 365 (11/30/17 – suicidal and homicidal ideation, self-injurious thoughts chronic
and increased, sad and anxious mood, constricted affect), 368 (12/14/17 – suicidal
ideation, homicidal ideation, self-injurious behaviors, paranoid delusions and impulsivity,
dysphoric mood, constricted detached affect), 372 (1/5/18 – self-injurious thoughts,
anxious mood, constricted detached affect), 374 (2/2/18 – self-injurious thoughts
included impulses for self-harm, obsessions/compulsions, stable dysphoric mood,
incongruent, constricted, detached affect), 376 (3/29/18 – self-injurious thoughts with
22

impulses for self-harm, stable dysphoric mood, incongruent, constricted detached affect),
380 (5/18/18 – obsessions/compulsions), 382 (6/8/18 – same), 384 (8/10/18 – same), 386
(8/24/18 – obsessions/compulsions including self-harm urges), 388 (9/21/18 - same), 390
(10/19/18 – same), 392 (11//16/18 – same), 394 (12/14/18 – same), 398 (2/22/19 – same).
Second, in considering Plaintiff’s subjective complaints the ALJ failed to consider
the efficacy of Plaintiff’s medications as required by the governing regulations. See 20
C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (requiring consideration of type, dosage,
effectiveness, and side effects of medications in evaluating subjective complaints).
Review of Dr. Harman’s treatment notes reveals continuing intrusive thoughts of selfharm and insomnia despite multiple changes of medication. See supra at 13-14. The
ALJ’s opinion is devoid of any consideration of Plaintiff’s medications and their efficacy
(or lack thereof).
Finally, Plaintiff accuses the ALJ of distorting the testimonial evidence to support
his conclusion. Doc. 13 at 13. Plaintiff’s argument is akin to the premise that an ALJ is
not permitted to “cherry-pick[ ] or ignore[e] medical assessments that r[u]n counter to her
finding.” Rios v. Comm’r of Soc. Sec., 444 F. App’x 532, 535 (3d Cir. 2011) (citing,
inter alia, Dougherty v. Barnhart, Civ. No. 05-5383, at *10 n. 4 (E.D. Pa. Aug. 21, 2006);
Colon v. Barnhart, 424 F. Supp.2d 805, 813-14 (E.D. Pa. 2006)); see also Schroeder v.
Berryhill, Civ. No. 16-464, 2017 WL 4250057, at *17 (M.D. Pa. Sept. 5, 2017) (“sort of
evaluation, where the evaluator mentions only isolated facts that militate against the
finding of disability and ignores much other evidence that points another way, amounts to

23

a ‘cherry-picking’ of the record which this Court will not abide”) (quoting Fanelli v.
Colvin, Civ. No. 16-1060, 2017 WL 551907, at *9 (W.D. Pa. Feb. 10, 2017)).
Here, the ALJ relied on Plaintiff’s testimony that he had friends with whom he
socialized and was active on social media to find that Plaintiff had only moderate
limitations in the domain of interacting with others. Tr. at 19-20. Likewise, in
considering Dr. Harman’s assessment (which will be discussed in greater detail later in
the next section), the ALJ relied on this testimony to reject Dr. Harman’s finding that
Plaintiff had extreme difficulties in maintaining social functioning and marked restriction
in activities of daily living. Id. at 25. The ALJ, however, failed to consider Plaintiff’s
testimony and that of his mother attesting to the fact that his depression caused him to
stay in bed all day at times and that his mother described the deterioration of his mental
health, anger outbursts, and inability to live independently. On remand, the ALJ shall
consider all of the testimonial evidence and specifically explain his reasons for rejecting
the evidence suggestive of limitations in the areas of functioning relevant to consideration
of the Listings and in determining Plaintiff’s RFC.
2.

Consideration of Treating Physician Opinion

Plaintiff also claims that the ALJ failed to accord proper weight to the opinion of
Plaintiff’s treating psychiatrist, Dr. Harman, noting that the doctor’s opinion is entitled to
controlling weight if it is “well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
case.” Doc. 13 at 11 (citing 20 C.F.R. § 404.1527(c)(2)). Before addressing Plaintiff’s

24

challenge to the ALJ’s consideration of Dr. Harman’s opinion, I must first address the
regulatory scheme governing such consideration.
Plaintiff is relying on the regulations that govern the consideration of medical
opinion evidence for claims filed prior to March 27, 2017. The new regulations, which
apply to claims filed on or after that date, abandon the concept of evidentiary weight and
focus instead on the persuasiveness of each medical opinion.
We will not defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or
prior administrative medical finding(s), including those from
your medical sources.
20 C.F.R. §§ 404.1520c(a), 416.920c(a). The regulations list the factors to be utilized in
considering medical opinions: supportability, consistency, relationship including the
length and purpose of the treatment relationship and frequency of examinations,
specialization, and other factors including familiarity with other evidence in the record or
an understanding of the disability program. Id. §§ 404.1520c(1), 4116.920c(1). The
most important of these factors are supportability and consistency, and the regulations
require the ALJ to explain these factors, but to not require discussion of the others. Id.
§§ 404.1520c(2), 416.920c(2). The regulations explain that “[t]he more relevant the
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) . . . , the more persuasive the medical opinion . . .
will be.” Id. §§ 404.1520c(1), 416.920c(1). In addition, “[t]he more consistent a medical
opinion . . . is with the evidence from other medical sources and nonmedical sources . . .
, the more persuasive the medical opinion . . . will be.” Id. §§ 404.1520c(c)(2),
25

416.920c(c)(2). Here, Plaintiff filed his applications on July 25, 2017. Therefore, the
revised regulations are applicable.
As previously noted, Dr. Harman found that Plaintiff had marked limitations in the
areas of activities of daily living and concentration, persistence, and pace, and extreme
limitations in the area of maintaining social functioning. Tr. at 405. The ALJ rejected
Dr. Harman’s assessment.
The medical report offered by [Plaintiff’s] treating source is
not persuasive ([tr. at 403-06]). This opinion is not supported
as there is no explanation within the four corners of the
medical report as to how Dr. Harman reached his conclusions.
His opinion is not consistent with the medical and other
evidence of record. For example, the doctor’s report is not
consistent with the balance of his own [MSEs] (see e.g., [id.
at 347-402]). Moreover, in terms of the old B-criteria the
doctor reported that [Plaintiff] had marked restriction of
activities of daily living, extreme difficulties in maintaining
social functioning, and marked deficiencies of concentration,
persistence, or pace. However, the record indicates, among
other things, that around the same time of the doctor’s report
[Plaintiff] had 8-9 close friends from high school he met with
regularly, had online friends, and that he loved to play
videogames (see e.g., [id. at 399]). He also recently went to
Comicon ([id. at 387]), uses social media, an application
based messaging service, and plays Nintendo Switch and
PlayStation 4 (Hearing Testimony). Moreover, as discussed
above, [Plaintiff’s MSE] was normal during the consultative
examination and during recent treatment at Penn Foundation.
Id. at 25.
The ALJ’s consideration of Dr. Harman’s assessment is partially accurate. For
example, the ALJ relied on Dr. Harman’s own MSEs to reject his mental capacity
assessment. In the assessment dated March 15, 2019, the doctor found marked
deficiencies in Plaintiff’s concentration, persistence, and pace. Tr. at 405. However, Dr.
26

Harman’s own MSEs consistently indicate that Plaintiff had intact memory, attention and
concentration. See tr. at 350 (6/22/17), 354 (7/20/17), 356 (8/10/17), 358 (9/28/17), 361
(10/26/17), 363 (11/16/17), 365 (11/30/17), 368 (12/14/17), 370 (12/14/17), 372 (1/5/18),
374 (2/2/18), 376 (3/29/18), 380 (5/18/18), 382 (6/8/18), 384 (8/10/18), 386 (8/24/18),
388 (9/21/18), 390 (10/19/18), 392 (11/16/18), 394 (12/14/18), 398 (2/22/19).
Nevertheless, the ALJ’s characterization of Dr. Harman’s MSEs as “normal” despite the
repeated notations of thoughts and urges of self-harm raises concerns about the ALJ’s
consideration of Dr. Harman’s assessment.
The ALJ also relied on Plaintiff’s testimony to undermine Dr. Harman’s
assessment, specifically with respect to social functioning. As previously discussed, the
ALJ’s consideration of the testimony was flawed and incomplete. See supra at 21-24.
Plaintiff’s mother’s testimony is particularly relevant to the consideration of Plaintiff’s
limitations in the areas of interacting with others and managing oneself, and it is unclear
if or to what extent the ALJ considered this testimony in considering the Listings and
Plaintiff’s RFC. It is incumbent upon the ALJ to explain his consideration of Ms.
Schwabe’s testimony.
Moreover, in reviewing the decision as a whole, the ALJ’s consideration of the
opinion evidence is concerning. As previously mentioned, in considering Dr. KochanDewey’s evaluation, the ALJ noted that Plaintiff had a “normal [MSE]” when he returned
to the Penn Foundation after the consultative examination. Tr. at 23. This is a
mischaracterization of the medical record. See supra at 21-22. Moreover, the ALJ found
the findings of the State Agency Psychological Consultant persuasive. Tr. at 25. Dr.
27

Murphy found, from his review of the record at the time, that Plaintiff had mild limitation
in his ability to understand, remember or apply information, and moderate limitation in
his abilities to interact with others, concentrate, persist, or maintain pace, and adapt or
manage oneself. Id. at 84. Dr. Murphy did not have the benefit of the more recent
treatment records from the Penn Foundation, which evidence increased intrusive thoughts
of self-harm and a series of medication changes to address this symptom and Plaintiff’s
chronic insomnia.
As previously noted, the revised regulations governing the consideration of
opinion evidence place emphasis on supportability and consistency with the record as a
whole. See 20 C.F.R. §§ 404.1520c(1)-(2), 416.920c(1)-(2). Considering the ALJ’s
mischaracterization of the MSEs from the Penn Foundation as normal despite endorsing
thoughts and compulsions of self-harm and his failure to properly consider the testimony
from Plaintiff and his mother, I also remand the case for further consideration of the
mental health treatment records and opinions.
3.

Listing 12.10

Finally, Plaintiff claims that the ALJ erred in concluding that Plaintiff did not meet
the requirements for Listing 12.10 under the revised criteria. Doc. 13 at 8-11. 35
Defendant responds that the ALJ’s determination that Plaintiff did not meet or medically
equal Listing 12.10 is supported by substantial evidence. Doc 14 at 4-10.

As previously mentioned, see supra at 15-16 n.32, the mental health Listings
were revised effective January 17, 2017, and the revised Listings apply to claims filed
thereafter or pending at that time.
35

28

Listing 12.10 addresses Autism spectrum disorder and requires:
A. Medical documentation of both of the following:
1. Qualitative deficits in verbal communication,
nonverbal communication, and social interaction; and
2. Significantly restricted, repetitive patterns of
behavior, interests, or activities,
AND
B. Extreme limitation of one, or marked limitation of
two, of the following areas of mental functioning:
1. Understand, remember, or apply
information.
2. Interact with others.
3. Concentrate, persist, or maintain pace.
4. Adapt or manage oneself.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.10 (internal citations omitted). The ALJ found
that Plaintiff suffered from only mild limitation in understanding, remembering, and
applying information, and moderate limitation in interacting with others, concentrating,
persisting or maintaining pace, and adapting or managing oneself. Tr. at 19-20. 36
In arguing that he meets Listing 12.10, Plaintiff relies on Dr. Harman’s assessment
in which the doctor found that Plaintiff had marked and extreme limitations in the areas
of activities of daily living, social functioning, and concentration, persistence, and pace,
which were the categories of functioning referred to in the B criteria of Listing 12.10
prior to the 2017 revision. Tr. at 405. Because I am remanding the case for further
consideration of the mental health treatment and opinion evidence, I have no need to

In addition to Listing 12.10, the ALJ also considered Listings 12.04 (Depressive,
bipolar, and related disorders), 12.06 (Anxiety and obsessive-compulsive disorders), and
12.15 (Trauma and stressor-related disorders), which have identical “B criteria” as
Listing 12.10. Tr. at 19. Plaintiff, however, has challenged only the ALJ’s finding with
respect to Listing 12.10. Doc. 13 at 8.
36

29

address the ALJ’s decision on the Listing issue at this point. Reconsideration of the
mental health evidence and the testimony may impact the ALJ’s consideration of the
categories of functioning.
IV.

CONCLUSION
The ALJ failed to properly consider Plaintiff’s testimony and that of his mother in

determining the limitations imposed by Plaintiff’s mental health impairments. Similarly,
in considering the mental health opinion evidence, the ALJ mischaracterized MSEs
performed by Plaintiff’s treating psychiatrist and relied on the State Agency Medical
Consultant who evaluated the record without the benefit of Plaintiff’s more recent
treatment records evidencing intrusive thoughts of and urges to self-harm. Because
reconsideration of the mental health and opinion evidence, as well as the testimony from
Plaintiff and his mother will impact consideration of Listing 12.10, I have not addressed
the ALJ’s consideration of the Listing.
An appropriate Order follows.

30

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DANIEL TAD WIDHSON
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security

:
:
:
:
:
:

CIVIL ACTION

NO. 20-3343

ORDER
AND NOW, this 13th day of July, 2021, upon consideration of Plaintiff’s request
for review (Doc. 13), the response (Doc. 14), and after careful consideration of the
administrative record (Doc. 10), IT IS HEREBY ORDERED that:
1.

Judgment is entered REVERSING the decision of the Commissioner of
Social Security for the purposes of this remand only and the relief sought
by Plaintiff is GRANTED to the extent that the matter is REMANDED for
further proceedings consistent with this adjudication; and

2.

The Clerk of Court is hereby directed to mark this case closed.

BY THE COURT:
/s/ ELIZABETH T. HEY
___________________________
ELIZABETH T. HEY, U.S.M.J.