BARNETT v. KIJAKAZI

Filing 16

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 11/26/24. 11/26/24 ENTERED AND COPIES E-MAILED.(mbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
J.B. 1
v.
MARTIN O’MALLEY,
Commissioner of Social Security 2

:
:
:
:
:
:

CIVIL ACTION

NO. 22-4226

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

November 26, 2024

Plaintiff seeks review of the Commissioner’s decision denying her application for
supplemental security income (“SSI”). For the reasons that follow, I conclude that the
decision of the Administrative Law Judge (“ALJ”) is supported by substantial evidence
and affirm the Commissioner’s decision.
I.

PROCEDURAL HISTORY
Plaintiff protectively filed an application for SSI on April 25, 2019, alleging

disability beginning on December 1, 2017, as a result of anxiety, post-traumatic stress
disorder (“PTSD”), and back problems. Tr. at 100, 226, 254. 3 Her application was

Consistent with the practice of this court to protect the privacy interests of
plaintiffs in social security cases, I will refer to Plaintiff using her initials. See Standing
Order – In re: Party Identification in Social Security Cases (E.D. Pa. June 10, 2024).
1

Martin O’Malley became the Commissioner of Social Security on December 20,
2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Commissioner
O’Malley should be substituted for Kilolo Kijakazi as the defendant in this action. No
further action need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act. 42 U.S.C. § 405(g).
2

Plaintiff filed earlier applications for SSI and disability insurance benefits, one of
which was remanded by the federal court on June 10, 2016. Tr. at 65, 250; Civil Action
3

denied initially, id. at 109-13, and on reconsideration, id. at 121-24, and she requested an
administrative hearing. Id. at 125. After holding a hearing on March 18, 2021, id. at 3563, 4 the ALJ issued an unfavorable decision on June 29, 2021. Id. at 13-28. The Appeals
Council denied Plaintiff’s request for review on August 24, 2022, id. at 1-4, making the
ALJ’s June 29, 2021 decision the final decision of the Commissioner. 20 C.F.R.
§ 416.1481. Plaintiff sought review in the federal court on October 21, 2022, Doc. 1, and
the matter is now fully briefed and ripe for review. Docs. 9-11. 5
II.

LEGAL STANDARD
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 conclusions 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 v. Colvin, 777 F.2d 607, 610 (3d Cir. 2014) (quoting Rutherford v.
15-6727, Doc. 15. On remand, an ALJ found Plaintiff was not disabled and she did not
seek further review. Tr. at 65.
The ALJ conducted an earlier hearing, but as explained at the beginning of the
hearing held on March 18, 2022, there was a problem with the recording so the ALJ
convened a new hearing. Tr. at 37-38.
4

The matter was originally assigned to the Honorable Richard Lloret and
reassigned to me upon Judge Lloret’s retirement. Doc. 14. The parties have consented to
magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). See Standing Order – In
Re: Direct Assignment of Social Security Appeals to Magistrate Judges – Extension of
Pilot Program (E.D. Pa. Nov. 27, 2020); Doc. 15.
5

2

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)); see also Biestek v. Berryhill, 587 U.S. 97,
103 (2019) (substantial evidence “means only – ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion’”) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). The court has plenary review of legal issues.
Schaudeck, 181 F.3d at 431.
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 her 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
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 her past work; and
5.
If the claimant cannot perform her past work,
then the final step is to determine whether there is other work
in the national economy that the claimant can perform.

3

See Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014); see also 20 C.F.R.
§ 404.1520(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 her age,
education, work experience, and RFC. See Poulos v. Comm’r of Soc. Sec., 474 F.3d 88,
92 (3d Cir. 2007).
III.

DISCUSSION
A.

ALJ’s Findings and Plaintiff’s Claims

In the June 29, 2021 decision under review, the ALJ found at step one that
Plaintiff has not engaged in substantial gainful activity since April 25, 2019, her
application date. Tr. at 15. At step two, the ALJ found that Plaintiff suffers from the
severe impairments of degenerative disc disease of the cervical and thoracic spine, right
ankle fracture, depression, anxiety, trauma, PTSD, and phencyclidine (“PCP”) use
disorder. Id. 6 At step three, the ALJ found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
Listings. Id. at 16.
The ALJ determined that Plaintiff retains the RFC to perform light work except
she can frequently operate hand controls and handle bilaterally; never climb ladders,
ropes, or scaffolds; occasionally stoop, crouch, and crawl; frequently balance, kneel, and
climb ramps and stairs; occasionally be exposed to vibration, unprotected heights,
The ALJ found that Plaintiff also suffers from the non-severe impairments of
asthma, a history of fibroids, hypertension, mild dysphagia, and anemia. Tr. at 15.
6

4

moving mechanical parts, humidity, wetness, dust odors, fumes, and other pulmonary
irritants; perform simple, routine, and repetitive tasks, but not at a production rate pace;
make simple work-related decisions and tolerate only occasional changes in the work
setting; and occasionally interact with supervisors, coworkers, and the public. Tr. at 18.
The ALJ found that Plaintiff has no past relevant work. Id. at 27. Based on the
testimony of a vocational expert (“VE”), the ALJ found that Plaintiff can perform the
jobs of sorter, hand bander, and inspector and hand packager. Id. at 28. As a result, the
ALJ concluded that Plaintiff is not disabled. Id.
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence
because the ALJ failed to include medically supported limitations in the RFC and failed
to articulate why she omitted such limitations. Doc. 9 at 2-7; Doc. 11. Plaintiff also
contends that the ALJ and Appeals Council members who considered her claim were not
properly appointed. Doc. 9 at 7-9. Defendant responds that the ALJ properly considered
the relevant evidence in determining Plaintiff’s RFC, and that the ALJ and Appeals
Council members were properly appointed. Doc. 10.
B.

Plaintiff’s Claimed Limitations and Testimony at the Hearing

Plaintiff was born on August 19, 1977, and thus was 41 years old when she
applied for SSI (April 25, 2019), and 43 years old at the time of the ALJ’s decision. June
29, 2021). Tr. at 80, 226. She is five feet, five inches tall and weighs approximately 150-

5

165 pounds. Id. at 42, 254. Plaintiff completed eleventh grade. Id. at 45, 255. 7 She has
no full-time past relevant work. Id. at 46. She lives in a house with a roommate who is a
close family friend. Id. at 42.
At the administrative hearing, Plaintiff discussed her physical and mental
impairments. Plaintiff complained of weakness in her hands that causes her to drop
things. Tr. at 47, 57. Plaintiff also complained of pain in her neck and back for which
she takes Extra Strength Tylenol and Motrin. Id. at 51, 54, 57. Plaintiff also has anxiety
problems and explained that she is fearful of and has trouble dealing with people. Tr. at
44, 53-54. She described it as having trust issues and believes that people are trying to
assault her. Id. She also has trouble concentrating. Id. at 46, 55.
A vocational expert (“VE”) also testified at the administrative hearing. Tr. at 5862. Based on the hypothetical posed by the ALJ with the limitations included in the
ALJ’s RFC assessment, see supra at 4-5, the VE testified that such an individual could
perform other work, including sorter, hand bander, and inspector/hand packager. Id. at
59. In addition, the VE testified that if the individual would be off-task more than 15%
of the time, such a person would not be employable. Id. at 60.

In her Function Report, Plaintiff indicated that she cannot read or write, tr. at 253,
although at the hearing, Plaintiff testified that she could read and write. Id. at 46. She
has also reported that she completed high school and nursing school. Id. at 443.
7

6

C.

Medical Evidence Summary 8

Plaintiff has a history of mental health diagnoses, including anxiety, unspecified
mood disorder, unspecified bipolar disorder, PTSD, and intermittent explosive disorder.
See, e.g., tr. at 330, 345. She has reported physical and sexual abuse as a child and
witnessed her fiancé’s murder in 2015. Id. at 404, 413, 416, 435, 487, 554, 780. Plaintiff
was hospitalized in December 2015 at Episcopal Hospital complaining that she was
“going through a lot” including the shooting death of her fiancée. Id. at 554. 9 She
reported increasing depression, decreased sleep, and nightmares, and daily use of PCP.
Id. On admission, she was diagnosed with unspecified depressive disorder, PCP abuse
disorder, and a rule out diagnosis of PTSD, and assessed a Global Assessment of
Functioning (“GAF”) score of 20. 10 Id. A week later, when discharged, her diagnoses

This summary will focus primarily on the mental health record, consistent with
Plaintiff’s claim.
8

There is reference to an earlier psychiatric hospitalization at Episcopal in 2014,
but the treatment notes are not contained in the record. See tr. at 485.
9

A GAF score is a measurements of a person's overall psychological, social, and
occupational functioning, and is used to assess mental health. Diagnostic and Statistical
Manual of Mental Disorders, 4th ed. Text Revision (2000) (“DSM IV-TR”), at 34. A
GAF score of 11-20 indicates “[s]ome danger of hurting self or others (e.g. suicide
attempts without clear expectation of death; frequently violent; manic excitement) [or]
occasionally fails to maintain minimal personal hygiene (e.g., smears feces) [or] gross
impairment in communication (e.g., largely incoherent or mute). Id. Although the DSM
5 eliminated the GAF scale, the Commissioner “will continue to receive and consider
GAF in medical evidence.” Administrative Message-13066 (July 22, 2013).
10

7

were mood disorder not otherwise specified, PTSD, and PCP use disorder, with a GAF
score of 55, 11 and was prescribed fluoxetine and prazosin. 12 Id. at 554-55.
Plaintiff was hospitalized at the Kirkbride Center in August 2016 with homicidal
ideation towards her neighbor. Tr. at 404-05. At the time she was also using PCP. Id. at
412, 416, 419, 420. Upon discharge from Kirkbride, Plaintiff began a drug and alcohol
program called STOP. Id. at 434.
Plaintiff began outpatient therapy and treatment at John F. Kennedy Behavioral
Health on October 18, 2016, with monthly appointments scheduled through April 2017.
Tr. at 435-39 (10/18/16 – Intake), 440-48 (11/28/16 - Intake Psychiatric Evaluation), 462
(1/9/17 – Psychotherapy), 463 (2/6/17 – Psychotherapy), 450-55 (2/27/17 – Medication
Management), 456-61 (3/21/17 – Medication Management), 464 (4/18/17 –
Psychotherapy). Tana Andre, D.O., diagnosed Plaintiff with PTSD, other bipolar
disorder with hypomanic episodes and major depressive disorder episodes, and severe
PCP use disorder, and prescribed Seroquel and clonidine. 13 Id. at 447-48. On March 21,

A GAF of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) [or] moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
DSM IV-TR at 34.
11

Fluoxetine (brand name Prozac) is an antidepressant used to treat major
depressive disorder, bulimia nervosa, obsessive-compulsive disorder, panic disorder, and
premenstrual dysphoric disorder. See https://www.drugs.com/fluoxetine.html (last
visited Nov. 12, 2024). Prazosin is used to treat hypertension. See
https://www.drugs.com/mtm/prazosin.html (last visited Nov. 12, 2024).
12

Seroquel is used to treat schizophrenia and in conjunction with other mediations
to prevent episodes of depression in patients with bipolar disorder. See
https://www.drugs.com/seroquel.html (last visited Nov. 12, 2024). Clonidine is used to
13

8

2017, Dr. Andre noted that Plaintiff was markedly depressed with triggering of PTSD
after encountering the man who sexually abused her. Id. at 460. She was not sleeping
well, her anxiety was poorly controlled, and the doctor increased Seroquel and considered
adding an antidepressant if there was no symptom improvement. Id. She was discharged
for non-attendance on June 20, 2017. Id. at 826.
Plaintiff began treatment with Citywide Community Counseling (“Citywide”) on
May 9, 2019, complaining of sleeping problems, anxiety, auditory hallucinations, and
PCP use most recently the prior month. Tr. at 485, 486. On mental status examination
(“MSE”), the clinician noted Plaintiff had a euthymic, depressed, and anxious mood with
a mildly blunted affect, and reported auditory hallucinations. Id. at 486-87. 14 Plaintiff
was diagnosed with schizoaffective disorder, a learning disability, PCP abuse, in partial
remission, and a rule out diagnosis of PTSD, and was prescribed Abilify. 15 Id. at 487-88.
The record also contains notes from three psychotherapy sessions at Citywide in May,
June, and August 2019, during which Plaintiff admitted self-medicating and isolating and
was diagnosed with major depressive disorder, severe, with psychotic features. Id. at
758, 760, 762. Therapist Hamid Sabur suggested she go to a drug and alcohol recovery
program to work on her addiction. Id. at 762.
treat hypertension. See https://www.drugs.com/clonidine.html (last visited Nov. 12,
2024).
The clinician, whose signature is illegible, also indicated that Plaintiff’s
“concentration and memory” were both intact and impaired. Tr. at 487-88.
14

Abilify is an antipsychotic which can be used alone or with a mood stabilizer to
treat bipolar I disorder. See https://www.drugs.com/abilify.html (last visited Nov. 12,
2024).
15

9

On July 11, 2019, a friend dropped Plaintiff off at the emergency department of
Temple University Hospital – Episcopal Behavioral Health, because Plaintiff was having
thoughts of stabbing a friend. Tr. at 497. Plaintiff reported “she needs help getting of[f]
pcp” and “having mental problems, racing thoughts of hurting people.” Id. at 496-97.
Ray Leslie, M.D., noted that Plaintiff appeared intoxicated and paranoid, was
disorganized, and had a bizarre affect. Id. at 497. Plaintiff admitted using crack cocaine
and PCP hours before arriving at the hospital, and reported daily use of PCP and cocaine
use one or two times a week. Id. at 498-99; see also id. at 507 (drug screen). She was
held for 23-hour observation and treated with risperidone and Ativan. 16 Id. at 502-03.
Most recently in the record, Plaintiff began mental health treatment at Comhar.
Tr. at 775-825. Although the records indicate an intake date of September 3, 2019, the
treatment notes in the record begin on April 16, 2020. Id. at 775-85. On April 25, 2020,
therapist Nichole Scheerer noted a diagnosis of PTSD. Id. at 795. The treatment goal
was to reduce Plaintiff’s nightmares, PTSD-related symptoms, and depressive symptoms.
Id. On June 23, 2020, Priyankar Sarkar, M.D., noted that Plaintiff had been struggling
with depression and had low energy. Id. at 801. The doctor indicated that Plaintiff was
suffering from only mental health issues rather than a combination of mental health and
substance abuse issues. Id. at 800-01. On MSE, Dr. Sarkar found Plaintiff had
depressed and anxious mood, goal-directed thought processes, recent memory and fiveRisperidone is an antipsychotic used to treat schizophrenia and symptoms of
bipolar disorder. See https://www.drugs.com/risperidone.html (last visited Nov. 12,
2024). Ativan is a benzodiazepine used to treat anxiety disorders and insomnia caused by
anxiety or temporary situational stress. See https://www.drugs.com/ativan.html (last
visited Nov. 12, 2024).
16

10

minute recall were both 3/3, and her concentration/attention span were focused and
remote memory was intact. Id. at 799-800. The doctor diagnosed major depression and
prescribed Wellbutrin. 17 Id. at 802-03. On September 16, 2020, Ms. Scheerer noted that
Plaintiff was inconsistent in attending treatment and made limited progress, and that
outreach attempts were not successful. Id. at 814. 18
On February 21, 2020, Baochan Tran, Psy.D., conducted a consultative Mental
Status Evaluation, during which Plaintiff complained about significant difficulty falling
and staying asleep due to racing thoughts, depressive symptoms including crying spells,
irritability, fatigue, loss of energy, and social withdrawal, and anxiety-related symptoms
including excessive apprehension, irritability, difficulty concentrating, and restlessness.
Tr. at 715-16. She suffered from nightmares, flashbacks, and panic attacks. Id. at 716.
On MSE, Dr. Tran noted circumstantial and slightly disorganized thought processes,
depressed and highly distractible affect, and mildly impaired attention and concentration
due to significant distractibility. Id. at 717. Plaintiff could perform simple mathematical
calculations without difficulty, but could not perform division. Id. at 718. Recent and
remote memory skills were impaired due to significant inattention, recalling 1 of 3
Wellbutrin (generic bupropion) is an antidepressant. See
https://www.drugs.com/wellbutrin.html (last visited Nov. 12, 2024).
17

Many of the Comhar records consist of notations of attempted contact with no
actual treatment notes. Tr. at 805 (5/19/20 – no answer to phone call), 806 (5/5/20 –
confirming appointment for 5/6/20), 807 (5/20/20 – confirming appointment for 6/23/20),
808-09 (6/24/20 – attempted outreach, left message), 810 (7/15/20 – attempted outreach,
left voicemail), 811 (7/28/20 – attempted contact, voicemail, called in medication), 812
(8/14/20 – voicemail scheduling appointment), 813 (8/27/20 – cancelling 9/8/20
appointment), 814-16 (9/16/20 – discharged – unable to contact/locate client).
18

11

objects immediately and none after a delay. Id. In addition, she had difficulty
understanding task demands and needed examples. Id. Dr. Tran diagnosed unspecified
depressive disorder, unspecified anxiety disorder, PTSD, and PCP use disorder,
moderate, in sustained remission. Id. at 719. The doctor also indicated that Plaintiff
would not be able to manage her own funds. Id. In a Medical Source Statement
(“MSS”), Dr. Tran found that Plaintiff had moderate limitations in the abilities to
understand, remember , and carry out simple and complex instructions and make
judgments on simple and complex work-related decisions. Id. 721. Similarly, Dr. Tran
found Plaintiff had moderate limitation in the abilities to interact with the public,
supervisors, and coworkers, and respond appropriately to usual work situations and
changes in a routine work setting. Id. at 722.
At the initial consideration level, on March 3, 2020, Paul Taren, Ph.D., found from
his review of the record that Plaintiff suffered from depressive, bipolar and related
disorders, anxiety and obsessive-compulsive disorders, and trauma and stressor-related
disorders, and had moderate limitations in her abilities to understand, remember, or apply
information, interact with others, concentrate, persist, or maintain pace, and adapt or
manage oneself. Tr. at 71. The doctor found that Plaintiff was not significantly limited
in understanding, remembering, and carrying out very short and simple instructions, and
moderately limited in the ability to understand, remember, and carry out detailed
instructions and maintain attention and concentration for extended periods. Id. at 75-76.
On reconsideration on June 29, 2020, Roger K. Fretz, Ph.D., found mental
limitations consistent with Dr. Taren’s findings. Tr. at 89, 95-96. Both Drs. Taren and
12

Fretz concluded that Plaintiff could “carry out no more than simple, routine tasks.” Id. at
77, 97.
C.

Plaintiff’s Claims
1.

Opinion Evidence

Plaintiff’s substantive claim involves the ALJ’s consideration of the mental health
treatment evidence, specifically the ALJ’s failure to include limitations noted by
consultative examiner Dr. Tran in the RFC assessment. Doc. 9 at 3-7; Doc. 11.
Defendant responds that the RFC assessment is based on all of the relevant evidence of
record, including Dr. Tran’s assessment. Doc. 10 at 18-25.
During his consultative examination, Dr. Tran found that Plaintiff’s attention and
concentration were “[m]ildly impaired due to significant distractibility and reduced
intellectual functioning,” noting that Plaintiff counted backwards from 10 to 1 and
performed simple calculations (other than division) without difficulty but was unable to
perform the serial 7s and committed an error with the serial 3s. Tr. at 718. In addition,
Dr. Tran found that Plaintiff’s memory was “impaired due to significant inattention,”
noting that Plaintiff recalled 1 of 3 objects immediately and none after a delay and had
difficulty understanding task demands. Id. In the accompanying MSS, Dr. Tran found
that Plaintiff had moderate limitations 19 in all areas of understanding, remembering, and

The MSS utilized a five-point scale, ranging from “None,” indicating that the
person is able to function in the area independently, appropriately, effectively, and on a
sustained basis, to “Extreme,” where the person is unable to function. Tr. at 721.
Relevant to Dr. Tran’s findings, “Moderate” is the middle of the five-point scale, and
indicates that “[f]unctioning in this area independently, appropriately, effectively, and on
a sustained basis is fair.” Id.
19

13

carrying out instructions, including the abilities to understand, remember, and carry out
both simple and complex instructions and make simple and complex work-related
decisions. Id. at 721. In addition, the doctor found that Plaintiff was moderately limited
in her abilities to interact appropriately with the public, supervisors, and coworkers, and
respond appropriately to usual work situations and changes in a routine work setting. Id.
at 722.
Plaintiff first complains that the “ALJ suggested that [Plaintiff’s] attention was not
‘mildly’ limited, as Dr. Tran noted in one part of his report, but ‘significantly limited’ as
he stated throughout the rest of his report,” and that the ALJ failed to adequately address
such significant limitations in the RFC assessment. Doc. 9 at 4 (citing tr. at 26). When
read in context, the ALJ was addressing inconsistencies between Dr. Tran’s narrative
report and MSS, and within the MSS itself.
Dr. Tran submitted a [MSS] in which he opined [Plaintiff]
had moderate limitation in her ability to understand,
remember, and carry out simple instructions. He supported
his opinion by noting that she has significant anxiety,
depression, and PTSD, which all impact her ability to attend
to information, significantly decreased attention, and she
required repetition of questions during examination. . . . Dr.
Tran had an opportunity to examine [Plaintiff] and while the
examination findings contained within the report are
somewhat inconsistent, in that it finds only mild problems in
attention, but then notes her recent and remote memory skills
were impaired due to significant inattention; his overall
opinion of moderate limitations is generally persuasive
because it is supported by the examination itself. Dr. Tran
also provides additional explanation showing difficulties in
these functional areas as detailed above. It is also generally
consistent with the record as a whole ([tr. at 758-63 –
Citywide notes]), including [Plaintiff’s] testimony that she
has problems with concentration and has problems getting
14

along with others. However, Dr. Tran’s statement that there
are no other capabilities, (such as ability to concentrate,
persist, or maintain pace, and the ability to adapt or manage
oneself) affected by the impairment ([id. at 721-22]) is not
persuasive because it is inconsistent with his findings on
examination, and inconsistent with his overall opinion as
stated above. It is also inconsistent with the record as a
whole, which shows [Plaintiff] was anxious and agitated on
exam, with only fair judgment and insight ([id. at 758, 760]).
She has a history of drug use and self-medicates ([id. at 762),
and exhibited flight of ideas ([id.]).
Tr. at 26.
I find no error in the ALJ’s consideration of Dr. Tran’s opinion. The ALJ
thoroughly and thoughtfully considered Dr. Tran’s narrative report and the MSS,
explained her resolution of inconsistencies in Dr. Tran’s characterizations of Plaintiff’s
limitations, and concluded that the findings of moderate limitations were “generally
persuasive” and consistent with the doctor’s examination and the record as a whole. This
conclusion is supported by substantial evidence. See tr. at 762 (8/20/19 – Citywide notes
indicating difficulty remembering an earlier session two months prior), 799-800 (6/4/20 –
Comhar notes indicating focused concentration/attention, good insight/judgment, recent
and 5-minute recall of 3/3 objects), 272, 274 (12/23/19 – Function Report indicating
Plaintiff can take public transportation, pay bills, and count change, but is unable to
handle a savings account or checkbook and has impaired concentration), 71 (3/3/20 –
initial consideration finding moderate limitations), 89 (6/29/20 – reconsideration finding
moderate limitations).
Plaintiff then argues that the ALJ found Dr. Tran’s opinion -- that Plaintiff has
moderate limitations in the abilities to understand, remember, and carry out simple
15

instructions -- generally persuasive yet failed to account for these limitations in
determining that Plaintiff could perform simple, routine, repetitive tasks. Doc. 9 at 4-7.
In support, Plaintiff argues that “[i]f the ALJ accepts the opinion of a medical source, she
must include the limitations identified by that medical source in the RFC finding.” Id. at
2 (citing 20 C.F.R. § 916.945(e)). Defendant responds that the ALJ “adequately
explained the evidence she relied on in assessing the RFC.” Doc. 10 at 23.
The regulation cited by Plaintiff requires the ALJ to consider the limiting effects
of all impairments, severe and non-severe, in determining a claimant’s RFC and does not
focus on the consideration of medical opinions. 20 C.F.R. § 916.945(e). But contrary to
Plaintiff’s argument, the Third Circuit has held that an ALJ is not required to incorporate
every limitation contained in a medical opinion that he or she finds persuasive. See
Wilkinson v. Comm’r of Soc. Sec., 558 F. App’x 254, 256 (3d Cir. 2014).
[N]o rule or regulation compels an ALJ to incorporate into an
RFC every finding made by a medical source simply because
the ALJ gives the source’s opinion as a whole “significant”
weight. On the contrary, the controlling regulations are clear
that the RFC finding is a determination expressly reserved to
the Commissioner.
Id. (citing 20 C.F.R. § 416.927(d)(2), 416.946(c); see also Matthews v. Kijakazi, Civ. No.
21-1140, 2022 WL 4535087, at *1 n.2 (W.D. Pa. Sept. 28, 2022) (there is no
“requirement that an ALJ explicitly reject any part of a persuasive/very-persuasive
opinion that does not make it into the RFC verbatim and provide an explanation for
having purportedly rejected such evidence”); Dingman v. Kijakazi, Civ. No. 21-1946,
2022 WL 3350366, at *6 (E.D. Pa. Aug. 12, 2022); Northington v. Berryhill, Civ. No.
16

17-2922, 2018 WL 2172565, at *6 (E.D. Pa. Feb. 27, 2018), R&R adopted, 2018 WL
2159923 (E.D. Pa. May 10, 2018). 20 Thus, the ALJ was not bound by each of Dr. Tran’s
findings merely because she found Dr. Tran’s opinion generally persuasive. 21
With respect to Plaintiff’s limitations imposed by her mental impairments, the
ALJ’s RFC assessment -- limiting Plaintiff to simple, routine, and repetitive tasks, but not
at a production rate pace, and making simple work related decisions with only occasional
changes in the work setting, with occasional interaction with supervisors, coworkers, and
the public -- is supported by substantial evidence. The ALJ noted that during Plaintiff’s
most recent mental health treatment at Comhar she was noted as having normal attention
and concentration, intact recent and remote memory, and was focused. Tr. at 23 (citing
id. at 793-94 – 4/25/20 – therapist Scheerer noting intact recent and remote memory,
attention/concentration was not impaired), 799-800 (6/23/20 – Dr. Sarkar noted no
impairment in Plaintiff’s recent and five-minute recall, and her concentration was focused
and her remote memory intact). In addition, based on review of the records, each of the
State disability mental consultants concluded that Plaintiff was “[n]ot significantly

Although Wilkinson and the regulations cited therein predate the changes to the
regulations governing the consideration of opinion evidence, nothing has changed about
the ALJ’s duty to craft the RFC assessment.
20

I note that, as previously discussed, Dr. Tran expressed conflicting views
regarding Plaintiff’s attention and concentration in his narrative report and MSS, finding
Plaintiff’s attention and concentration mildly impaired in his narrative report and finding
Plaintiff had moderate limitation in her abilities to understand, remember, and carry out
instructions, both simple and complex, in the MSS. Compare tr. at 718 with id. at 721.
In addition, contrary to a finding of mild or moderate limitation, the doctor indicated in
the MSS that Plaintiff’s impairments did not impact her abilities to concentrate, persist or
maintain pace. Id. at 722.
21

17

limited in the ability to understand and remember very short and simple directions,” id. at
75 (Dr. Taren), 95 (Dr. Fretz), and both concluded that Plaintiff “is able to carry out no
more than simple, routine tasks due to the limitations associated with her impairment.”
Id. at 77 (Dr. Taren), 97 (Dr. Fretz). Thus, I conclude that the ALJ did not err in her
consideration of Dr. Tran’s opinion and that the mental RFC assessment is supported by
substantial evidence.
2.

Authority of ALJ and Appeals Council Members

Plaintiff also challenges the authority of the ALJ and Appeals Council judges who
considered her case, arguing that they were not properly appointed. Doc. 9 at 7-10.
Defendant responds that the ALJ and Appeals Council Judges were properly appointed.
Doc. 10 at 4-16.
Relying on the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3346(a), and
two cases arising in the District of Minnesota, Plaintiff argues that Nancy Berryhill’s
appointment as Acting Commissioner of Social Security was not valid at the time she
ratified the ALJ’s appointment and the appointment of the members of the Appeals
Council, because she had served beyond the 210 days authorized by the FVRA. Doc. 9 at
7-8 (citing Brian T.D. v. Kijakazi, 580 F. Supp.3d 615 (D. Minn. 2022); Richard J.M. v.
Kijakazi, Civ. No. 19-827, 2022 WL 959914 (D. Minn. Mar. 30, 2022)). After Plaintiff
filed her brief, a panel of the Third Circuit rejected Plaintiff’s reading of the FVRA in a
not precedential opinion, finding “that Berryhill was lawfully serving as acting SSA
Commissioner when she ratified the appointments of the SSA ALJs.” Gaiambrone v.
Comm’r of Soc. Sec., C.A. 23-2988, 2024 WL 3518305, at *3 (3d Cir. July 24, 2024).
18

The panel explained that the FVRA permits two separate, independent time periods for
acting service – 210 days beginning on the date the vacancy occurs, and a second period
during the pendency of a nomination. Id. The panel relied in part on a recent decision of
the Eighth Circuit which reversed one of the cases on which Plaintiff relies. Id. (citing
Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023)). Although the opinion is not binding, I
rely on it in rejecting Plaintiff’s procedural argument.
IV.

CONCLUSION
The ALJ properly considered the opinion of Dr. Tran and the mental limitations

contained in the RFC assessment are supported by substantial evidence. Plaintiff’s
challenge to the authority of the ALJ and Appeals Council members is meritless. Nancy
Berryhill was properly serving as the Acting Commissioner of Social Security at the time
she ratified the appointments of the ALJ and Appeals Council members.
An appropriate Order follows.

19