Sanchez v. Colvin
MEMORANDUM (Order to follow as separate docket entry) re 9 Brief Filed By Plaintiff in Social Security Appeal Case filed by Desiree L. Sanchez, 7 Transcript (Social Security Case), 6 Answer to Complaint filed by Carolyn W. Colvin, 11 Appellant's Reply Brief filed by Desiree L. Sanchez, 1 Complaint filed by Desiree L. Sanchez, 10 Brief Filed By Defendant in Social Security Appeal Case filed by Carolyn W. Colvin.Signed by Magistrate Judge Gerald B. Cohn on 10/14/14. (aaa)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DESIREE LEA SANCHEZ (POPP),
CASE NO. 1:13-cv-02479-GBC
(MAGISTRATE JUDGE COHN)
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
Docs. 1, 6, 7, 9, 10, 11,
The above-captioned action is one seeking review of a decision of the Commissioner of
Social Security ("Commissioner") denying the application of Plaintiff Desiree Sanchez for
supplemental security income (“SSI”) and disability insurance benefits (“DIB”) under the Social
Security Act, 42 U.S.C. §§401-433, 1382-1383 (the “Act”). Plaintiff asserts that the ALJ erred in
evaluating her physical residual functional capacity because she did not include any limitations
for stooping. However, no objective evidence supports a limitation in stooping. The ALJ
properly discounted Plaintiff’s credibility regarding her symptoms on the ground that her
medical records and extremely conservative course of treatment contradicted her claims.
Regardless, two of the three occupations identified by the ALJ that Plaintiff could perform in the
national economy never require stooping, so any error was harmless.
Plaintiff asserts that the ALJ erred in failing to assign limitations in her ability to interact
with supervisors, adapt to changes and stress in the work environment, understand, remember,
and carry out detailed instructions, and make judgments in the work settings. However, with the
exception of her ability to interact with supervisors, Plaintiff does not develop this argument, and
Page 1 of 36
it is therefore waived. Even if it was not, none of the jobs identified by the ALJ require more
than occasional interaction with supervisors, involve repetitive, short-cycle work with little or no
changes, do not require working effectively under stress, do not require making judgments, and
are limited to simple, one and two step instructions. Consequently, any error in failing to assess
additional limitations was harmless.
Plaintiff asserts that the ALJ erred in failing to find that she met a Listing. However, both
Listings identified by Plaintiff require that she establish the “Paragraph B” criteria. Plaintiff
asserts that she has done so by showing marked limitations in social functioning and
concentration, persistence, and pace. However, the medical records cited by Plaintiff to show
that she had a marked limitation in social functioning actually demonstrate that she was able to
maintain many “close” friendships, was not socially isolated, and carried on romantic
relationships. The medical records cited by Plaintiff to show that she had a marked limitation in
concentration, persistence, and pace actually show that she could complete serial sevens, perform
cognitive tasks, and had intact memory. Moreover, even if the ALJ had erred in evaluating the
Paragraph B criteria, Plaintiff would not have been able to show that she met the “Paragraph A”
criteria for either Listing. For all of the foregoing reasons, the Court affirms the decision of the
Commissioner and denies Plaintiff’s appeal.
On January 10, 2011, Plaintiff filed an application for SSI under Title XVI of the Act and
for DIB under Title II of the Act. (Tr. 176-88). On May 6, 2011, the Bureau of Disability
Determination denied these applications (Tr. 85-104), and Plaintiff filed a request for a hearing
on June 3, 2011. (Tr. 119-20). On July 11, 2012, an ALJ held a hearing at which Plaintiff—who
was represented by an attorney—and a vocational expert (“VE”) appeared and testified. (Tr. 31-
Page 2 of 36
84). On July 23, 2012, the ALJ found that Plaintiff was not disabled and not entitled to benefits.
(Tr. 11-25). On September 21, 2012, Plaintiff filed a request for review with the Appeals Council
(Tr. 7-10), which the Appeals Council denied on August 13, 2013, thereby affirming the decision
of the ALJ as the “final decision” of the Commissioner. (Tr. 1-6).
On September 30, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C.
§ 405(g) to appeal the decision of the Commissioner. (Doc. 1). On December 3, 2013, the
Commissioner filed an answer and administrative transcript of proceedings. (Docs. 6, 7). On
January 6, 2014, Plaintiff filed a brief in support of her appeal (“Pl. Brief”). (Doc. 9). On
February 11, 2014, Defendant filed a brief in response (“Def. Brief”). (Doc. 10). On February 20,
2014, Plaintiff filed a brief in reply. (“Pl. Reply”). (Doc. 11). On April 29, 2014, the Court
referred this case to the undersigned Magistrate Judge. Both parties consented to the referral of
this case for adjudication to the undersigned on June 9, 2014, and an order referring the case to
the undersigned for adjudication was entered on June 9, 2014. (Doc. 14, 15).
Standard of Review
When reviewing the denial of disability benefits, the Court must determine whether
substantial evidence supports the denial. Johnson v. Commissioner of Social Sec., 529 F.3d 198,
200 (3d Cir. 2008); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Substantial evidence
is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
Substantial evidence “does not mean a large or considerable amount of evidence.” Pierce v.
Underwood, 487 U.S. 552, 564 (1988). Substantial evidence requires only “more than a mere
scintilla” of evidence, Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999), and may be less than
a preponderance. Jones, 364 F.3d at 503. If a “reasonable mind might accept the relevant
evidence as adequate” to support a conclusion reached by the Commissioner, then the
Page 3 of 36
Commissioner’s determination is supported by substantial evidence. Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999); Johnson, 529 F.3d at 200.
Sequential Evaluation Process
To receive disability or supplemental security benefits, a claimant must demonstrate 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 12 months.” 42 U.S.C. §
423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits
show that he has a physical or mental impairment of such a severity that:
He is not only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step evaluation process to determine if a person is eligible
for disability benefits. See 20 C.F.R. § 404.1520; see also Plummer, 186 F.3d at 428. If the
Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence,
review does not proceed. See 20 C.F.R. § 404.1520. The Commissioner must sequentially
determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals a listed
impairment from 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the claimant’s
impairment prevents the claimant from doing past relevant work; and (5) whether the claimant’s
impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520,
Page 4 of 36
416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's
residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e).
The disability determination involves shifting burdens of proof. The claimant bears the
burden of proof at steps one through four.
If the claimant satisfies this burden, then the
Commissioner must show at step five that jobs exist in the national economy that a person with
the claimant’s abilities, age, education, and work experience can perform. Mason v. Shalala, 994
F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of
the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).
V. Relevant Facts in the Record
Plaintiff was born on January 16, 1983 and was classified by the regulations as a younger
individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 35, 76). She has a
high school education and past relevant work as a nurse assistant. (Tr. 76).
Plaintiff had a long history of depression and anxiety, but they were historically “wellmaintained” by a combination of Zoloft and Depakote. (Tr. 281). Plaintiff lost her insurance
early in 2008, and presented to Dr. Dwight Eichelberger, M.D., at Norlanco Family Associates
for a recurrence of her depression symptoms on November 19, 2008. (Tr. 281). She had mild to
moderate symptoms, but reported she had a “strong social support network” and would later
indicate that her boyfriend was “very good to her” and a “good sounding board.” (Tr. 280-81).
She was restarted on Zoloft and Depakote, and continued her work as a certified nurse assistant
(“CNA”) thirty hours a week. (Tr. 210, 212, 281).
In August of 2009, Plaintiff reported worsening symptoms of depression and anxiety. (Tr.
259, 276). She had been taking Zoloft, but had “just restarted Depakote.” (Tr. 259, 276). She had
Page 5 of 36
a “number of psychosocial stressors” and her family physician could not “rule out inpatient
treatment,” but she continued working thirty hours a week as a CNA. (Tr. 210, 212, 269-60).
On January 3, 2010, Plaintiff stopped working when her only client died in her arms. (Tr.
361). On January 13, 2010, Plaintiff presented to the emergency room at Hershey Medical
Center reporting that she was having a “bad mental break down.” (Tr. 353). She had been off of
her medications for about two months. (Tr. 370). She had significant symptoms, including
occasional thoughts of suicide. (Tr. 353). However, she did not meet the requirements for
involuntary hospitalization, and refused to consent to voluntary hospitalization because she
needed to care for her children. (Tr. 353-54). She was discharged home and instructed to followup at Philhaven. (Tr. 354).
On January 18, 2010, Plaintiff presented to Philhaven for a psychiatric evaluation with
Dr. Nhien Nguyen, M.D., and continued to exhibit significant symptoms. (Tr. 370). She reported
that she generally had one panic attack per month, but had five panic attacks in the previous three
weeks. (Tr. 370). She reported sleeping only three hours a night, using energy drinks to stay
awake, and mood swings “as long as she could remember.” (Tr. 370). She was assessed a GAF
of 50. (Tr. 371). Dr. Nguyen started Plaintiff again on Depakote and Zoloft and also prescribed
her Klonopin for anxiety and panic attacks. (Tr. 372).
After restarting her medications, Plaintiff improved. Plaintiff reported on February 8,
2010 that she had less depression and reported on March 8, 2010 that she had only “a little”
anxiety and no panic attacks. (Tr. 383-84). On April 22, 2010, she reported that she had broken
up with her boyfriend, but that her sleep and appetite were “ok.” (Tr. 380). On July 14, 2010,
Plaintiff reported an increase of symptoms, including sleeping only three to four hours at a time
and having two panic attacks two weeks earlier. (Tr. 377). However, Plaintiff lost her
Page 6 of 36
transportation, and did not follow-up at Philhaven again until after being hospitalized in
December of 2010. (Tr. 314, 317, 375-77). She would have run out of her medication around
October 14, 2010. 1
On September 28, 2010, Plaintiff saw Dr. Lorin Beidler, M.D., at Norlanco Family
Associates. (Tr. 256). She denied malaise/fatigue. (Tr. 256).
Plaintiff’s alleged onset was October 3, 2010. (Tr. 16). Around December 7, 2010,
Plaintiff was admitted to Lancaster General Hospital because she “had a nervous breakdown and
she cut herself…on the upper portion of her wrist.” (Tr. 316). 2 She wanted to leave and “put in
for a 72 hour letter…and talked to her lawyer.” (Tr. 316). On December 8, 2010, Plaintiff was
discharged. (Tr. 345). However, once home, Plaintiff took fifteen Klonopin, so an ambulance
brought her back to the emergency room, this time at Hershey Medical Center. (Tr. 316). On
admission, Plaintiff said “I don’t want to live anymore.” (Tr. 349). Plaintiff “stated the reason
was to kill herself.” (Tr. 316, 352). Plaintiff’s mother reported that Plaintiff took the Klonopin
because her boyfriend broke up with her. (Tr. 345). Plaintiff initially consented to a voluntary
hospitalization, but then refused treatment and became disruptive. (Tr. 351). She was
uncooperative, refused to answer basic questions, and continued to refuse treatment, so she was
involuntarily hospitalized. (Tr. 345). Plaintiff’s drug test was positive for marijuana. (Tr. 347).
Plaintiff was transferred to the Pennsylvania Psychiatric Institute and hospitalized there
As of September 28, 2010, Plaintiff was still taking Depakote, Zoloft, and Klonopin. (Tr. 258).
She had been given a ninety-day supply (thirty days with two refills) on July 14, 2010, so she
would have run out around October 14, 2010. (Tr. 377). By the time of her admission to
Lancaster General on December 7, 2010, she was taking only Klonopin, and was prescribed
Buspar during her course there. (Tr. 316).
The Court does not have records from Plaintiff’s hospitalization at Lancaster General Hospital
from December 7, 2010 to December 9, 2010. It appears the state agency requested records from
November of 2010 instead of December of 2010. (Tr. 366, 369). However, Plaintiff described
this visit to providers at Pennsylvania Psychiatric Institute. (Tr. 316).
Page 7 of 36
from December 9, 2010 to December 13, 2010. (Tr. 316). Contrary to her earlier reports, she
stated that she was not trying to harm herself when she took the Klonopin, she was just
overwhelmed with fifteen people calling her home and asking about her and was just trying to
sleep. (Tr. 316). Plaintiff “stated that she has been feeling depressed from time to time, but this
varies from 1 day to another, and she would deny that her mood is constantly depressed for the
last couple weeks or so. She stated usually she is sad for a day or 2 and then she feels good.” (Tr.
316). She reported problems with eating, appetite, sleeping, short term memory, concentration
and energy level. (Tr. 316). She indicated that “anxiety is a big problem for her, and she rated
anxiety 8/10 today...at times the anxiety gets so bad that she gets palpitations, short of breath,
and she feels like she is going to die and that happens usually once or twice a week.” (Tr. 316).
Plaintiff reported a long history of abuse and described “chronic feelings of emptiness,
scared that she is going to be abandoned and being impulsive and feeling scared and then having
difficulties regulating her affect and moods, feeling irritable and angry at times.” (Tr. 317). She
reported that she had last used marijuana one week earlier. (Tr. 317). Plaintiff also reported that
she had not been able to attend outpatient therapy since June because her car was “not in good
shape.” (Tr. 317). When Plaintiff’s mother was contacted, she “also discussed her difficulty
attending outpatient mental health appointments due to lack of transportation.” (Tr. 314).
Plaintiff became visibly upset, tearful and very irritable when she realized that procedures were
different for involuntary hospitalizations and was tearful and very irritable. (Tr. 318). Insight,
judgment, impulse control, coping skills, and her way of responding to situations were poor, and
she walked out of the interview. (Tr. 318). She was assessed a GAF of 40. (Tr. 318).
However, Plaintiff was “much brighter” after 24 hours of admission and “actively
engaged in most of the activities with peers and in the groups.” (Tr. 314). Plaintiff was
Page 8 of 36
discharged on December 13, 2010 when she “presented calm, cooperative, and talked about her
recovery. She felt that the current medication regimen suited her well.” (Tr. 314). She reported
improved energy and motivation. (Tr. 313). Her diagnoses at the time of discharge included
depressive disorder, not otherwise specified, panic disorder without agoraphobia, cannabis abuse,
and borderline personality disorder. (Tr. 313). She was assessed a GAF of 50. (Tr. 313). 3
On December 28, 2010, Plaintiff presented to the emergency room at Hershey Medical
Center with a probable panic attack. (Tr. 340). She was cooperative with “appropriate mood and
affect.” (Tr. 342). She was treated with oxygen and discharged home. (Tr. 340, 342).
After Plaintiff’s inpatient hospitalization, she was treated twice at Philhaven, once on
December 21, 2010, and once on March 7, 2011. (Tr. 373-74). In December, she reported that
she had been doing “ok” since her discharge and had “increased energy.” (Tr. 374). In March,
she reported that she was more depressed, and notes indicate that she was observed to be
“drowsy” and “not sure if completely compliant [with] meds.” (Tr. 373). However, there are no
subsequent records from Philhaven after this visit. 4
On April 15, 2011, state agency physician Dr. John Tardibuono, Ed.D, performed a
consultative examination. (Tr. 388). Plaintiff was verbal and alert with a somewhat sad,
depressed mood and anxious affect. (Tr. 388). Her speech was normal, but she cried openly a
few times during the session. (Tr. 388). She reported engaging in self-harm as recently as the last
week. (Tr. 390). Plaintiff indicated that she had poor sleep with nightmares, appetite, and eating
habits, impulse control, and volatile temper, but denied hallucinations and delusions. (Tr. 390).
Plaintiff was assessed a GAF of 51 to 60 by a resident in an initial discharge summary, but an
addendum to the discharge summary by Plaintiff’s admitting physician amended the GAF to 50
and added additional diagnoses. (Tr. 313, 315).
Plaintiff testified that she saw a counselor at Philhaven twice a week for almost a year, ending
in about March of 2012, but Philhaven represented that her counselor was only an intern, and
that they no longer had those records. (Tr. 26).
Page 9 of 36
However, Plaintiff denied specific acting out or aggression towards people. (Tr. 390). Plaintiff
reported that she “has for the most part been clean and sober for the past year and a half.” (Tr.
391). On mental status exam, Plaintiff’s “long-term and recent memory is acceptable, but she
does have problems with short-term memory requiring that she write everything down.” (Tr.
391). Her thinking was “direct, rational, logical, and goal directed,” she “responded to
similarities at very adequate levels of abstraction,” and was “able to complete both simple mental
math and serial 7’s.” (Tr. 391).
Dr. Tardibuono opined that Plaintiff had a “long history of mental, emotional, and
behavioral difficulties with considerable instability related to suicide ideation and/or attempts.”
(Tr. 392). He also opined that Plaintiff had “issues related to poor social judgment, impulsive and
somewhat aggressive behaviors with quick anger and agitation.” (Tr. 392). Dr. Tardibuono
opined that Plaintiff is “capable of understanding and remembering simple instructions” and is
“capable of completing simple repetitive” tasks but “may have some difficulty with focus due to
mood transitions.” (Tr. 392). Dr. Tardibuono noted that while Plaintiff “did not reference
specific conflicts with fellow workers or supervisors during prior work history, she does express
issues related to poor social judgment, impulsive and somewhat aggressive behaviors with quick
anger and agitation.” (Tr. 392). He concluded that “she very likely would have significant
conflicts with fellow workers and/or supervisors.” (Tr. 392). Dr. Tardibuono assessed her to have
bipolar disorder, not otherwise specified, anxiety disorder with panic, and posttraumatic stress
disorder, with a GAF of 48. (Tr. 391).
Despite Dr. Tardibuono’s observations and Plaintiff’s reports, he concluded that she
could perform at least satisfactorily in all work functions. (Tr. 394-95). He opined that she had
only slight limitations in her ability to understand and remember detailed instructions, make
Page 10 of 36
judgments on simple work-related decision, interact appropriately with the public and coworkers,
and respond appropriately to changes in a routine work setting. (Tr. 395). He opined that she had
only slight to moderate limitations in her ability to carry out detailed instructions and interact
appropriately with supervisors. (Tr. 395). He opined that she had only moderate limitations in
her ability to respond appropriately to work pressures in a usual work setting. (Tr. 395). Slight
limitations were defined on the form as “some mild limitation in the area, but the individual can
generally function well,” and moderate limitations were defined as “moderate limitation in the
area, but the individual is still able to function satisfactorily.” (Tr. 394).
On May 4, 2011, a state agency physician, Dr. Karen Weitzner, Ph.D, reviewed
Plaintiff’s file and completed a Listings analysis. (Tr. 88). She opined that Plaintiff had mild
limitations in her activities of daily living, moderate limitations in social functioning and
concentration, persistence, or pace, and one or two episodes of decompensation. (Tr. 89). In the
mental RFC assessment, she opined that Plaintiff has moderate limitations in her ability to
maintain attention and concentration for extended periods, carry out detailed instructions,
interact appropriately with the general public, accept instruction and criticism appropriately from
supervisors, and respond appropriately to changes in the work setting. (Tr. 90-91).
Dr. Weitzner explained:
Claimant’s cognitive functioning is intact. She is limited in her ability to sustain
concentration. She is able to complete simple, routine tasks. Claimant is easily frustrated
and she reports she has acted out both verbally and physically in the past. She would
work best independently. Claimant’s allegations are partially credible. The medical
source opinion provided by John Tardibuono, Ed.D, is consistent with the current
assessment and is given great weight. Claimant is capable of sustained employment
despite the limitations related to her mental health impairment.
(Tr. 91). On May 6, 2011, Dr. Jonathan Rightmyer, Ph.D. reviewed Plaintiff’s file. A suicide
hold had been placed on Plaintiff’s file, and he indicated that her suicide potential was “low,
Page 11 of 36
cannot rule out.” (Tr. 403). However, he “agree[d] with denial decision.” (Tr. 403).
There is no evidence of any mental health treatment from any provider until November
29, 2011, when Plaintiff presented to her family doctor at Norlanco for depression. (Tr. 468). She
was not nervous/anxious and does not have insomnia.” (Tr. 468). She had a “normal mood and
affect.” (Tr. 468). She had been off of her medications since June, and was again restarted on
Zoloft, Depakote, and Klonopin. (Tr. 468). There is no evidence of any additional mental health
treatment. Instead, while being treated for bronchitis and musculoskeletal pain throughout 2012,
Plaintiff had “normal mood and affect.” (Tr. 479, 486, 492). On March 13, 2012, Plaintiff had
normal mood, affect, behavior, judgment, and thought content. (Tr. 497). On March 30, 2012,
Plaintiff was “negative for depression, hallucinations, memory loss and substance abuse” and
was “not nervous/anxious” with “normal mood and affect.” (Tr. 504-05). On April 13, 2012,
Plaintiff’s “underlying bipolar [was] well managed.” (Tr. 511). She was “negative for
depression, hallucinations, memory loss and substance abuse” and was “not nervous/anxious and
does not have insomnia.” (Tr. 511). Dr. Yoder noted “mood stable.” (Tr. 512).
Plaintiff first complained of back pain on December 3, 2009. (Tr. 273). She had “never
had trouble with her back before.” (Tr. 273). She reported severe back pain that radiated down
her leg, and she went to the emergency room at Hershey Medical Center. (Tr. 273). She had an
MRI, but it was mostly normal, with only minimum abnormalities. (Tr. 251). Specifically, an
MRI of Plaintiff’s thoracic spine was “within normal limits.” (Tr. 251). An MRI of Plaintiff’s
lumbar spine indicated “minimal degenerative changes of the lumbar spine with mild
circumferential disc bulge and mild bilateral neuroforaminal narrowing” but the “remainder of
the spine is unremarkable.” (Tr. 251). Plaintiff was treated with Valium, Percocet, and ibuprofen.
Page 12 of 36
(Tr. 273). The next day, she followed-up at Norlanco Family Medicine. (Tr. 273). She had a
positive straight leg raise and “some” muscle spasms. (Tr. 273). However, her reflexes were
present and her strength was good. (Tr. 273). She was being treated with Percocet, Valium, and
ibuprofen, but Percocet made her nauseous. (Tr. 273).
At a follow-up on December 23, 2009, Plaintiff indicated that her pain was moderate,
worse with walking, lifting, prolonged sitting and standing. (Tr. 270). She had discomfort with
left straight-leg raising. (Tr. 270). She had “decreased but present reflexes in both Achilles and
patellar areas and normal gait and station.” (Tr. 270). She had “no foot drop at this time although
left EHL is not as strong as the right, 4 out of 5 as compared to 5 out of 5.” (Tr. 270).
However, by April of 2010, Plaintiff was no longer taking Percocet or Valium. She had
reported on March 9, 2010 at Philhaven that she had joined a gym and was going three times per
week. (Tr. 383). On April 16, 2010, Plaintiff saw Dr. Jonathan Stewart, M.D., at Norlanco
Family Medicine. (Tr. 263). She was complaining of left foot pain, “she felt like she bruised it
walking around at Hershey Park.” (Tr. 263). Imaging revealed no fracture, and she “declined
stronger pain medications.” (Tr. 263). Interestingly, Plaintiff would report on April 22, 2010 to
Dr. Nguyen at Philhaven that she “broke” her foot two weeks earlier after “excessive walking
and running ten miles on treadmill.” (Tr. 380). When Plaintiff presented to Norlanco Family
Associates on September 28, 2010, complaining of a lump in her neck, her only medications
were Klonopin, Depakote, Zoloft, and Albutrol, which, as discussed below, are used to treat
anxiety, depression, and asthma, not back pain. (Tr. 256-57).
Plaintiff’s alleged onset date is October 3, 2010. (Tr. 16). During Plaintiff’s inpatient
hospitalization at the Pennsylvania Psychiatric Institute, she complained of back pain. (Tr. 325).
On evaluation, her reflexes were intact and she had 5/5 muscle strength in her lower extremity,
Page 13 of 36
although she stated that it was painful when her strength was evaluated. (Tr. 325). She had “mild
pain on deep palpation of her lower lumbar spine.” (Tr. 325). Her gait was “slow, but stable”
with “slightly decreased weightbearing on her right lower extremity.” (Tr. 325). Because
Plaintiff’s muscle strength was normal and examination revealed on minimal abnormalities,
Plaintiff did not need acute intervention or narcotics, and would be treated only with antiinflammatories. (Tr. 326). On December 28, 2010, she reported back pain during her emergency
room visit, but her back was nontender and there was no swelling. (Tr. 341). Plaintiff was not
taking any pain medications. (Tr. 341). Although Plaintiff was subsequently treated with
ibuprofen for groin pain, her groin pain resolved after a hysterectomy in October of 2011, and
she was never treated for back or muscle pain during 2011. (Tr. 430, 439, 447, 457, 462, 466,
471, 480, 487, 491). She did not mention back or muscle pain again until fifteen months later, in
March of 2012. As late as March 5, 2012, Plaintiff specifically denied myalgia, or “[p]ain in a
muscle or in several muscles.” 4-M Attorneys' Dictionary of Medicine M-77403. (Tr. 492-93).
On March 13, 2012, Plaintiff was seen at Norlanco Family Medicine for leg pain, fatigue,
and headache. (Tr. 497). She could not “recall any cause just began having pain bilateral calves
on Sunday afternoon…never occurred before.” (Tr. 497). She was checked for Lyme disease, but
the test was negative. (Tr. 497, 522). She was prescribed Flexeril, 10mg, three times a day, for
ten days. (Tr. 497).
On March 30, 2012, Plaintiff was seen at Norlanco Family Medicine. (Tr. 500). She
reported that she had fatigue, dizziness, and pain in hips, knees, wrists, and fingers, that had been
getting worse over the previous two months. (Tr. 500). She had soft tissue swelling, myalgias,
back pain, joint pain, weakness, and headaches. (Tr. 504). Dr. John Yoder, M.D., opined that
“this will likely be fibromyalgia, rule out and work up then begin to treat, concentrating on
Page 14 of 36
improving sleep and fatigue.” (Tr. 505). She was no longer taking Flexeril. (Tr. 505).
On April 13, 2012, Plaintiff followed-up with Dr. Yoder. (Tr. 511). She continued to
report fatigue, poor sleep due to pain, bilateral pain in her back and neck, but no numbness or
weakness. (Tr. 511). Plaintiff was restarted on Flexeril for sixty days, but her dose was decreased
to 10 mg, once per day at bedtime. (Tr. 512). There are no subsequent medical records.
Function Reports, Testimony, and ALJ Findings
When Plaintiff was completing her claim over the telephone on January 10, 2011, the
interviewer indicated no problems with understanding, coherency, or concentrating. (Tr. 199).
On February 2, 2011, Plaintiff’s mother, Cindy Krut, completed a Third Party Function Report.
(Tr. 221). She reported that Plaintiff cooks and provides general daily care for her three children
and cares for pets. (Tr. 222). She reported that Plaintiff can cook “whatever she wants” and
cooks on a daily basis. (Tr. 223). She reported that Plaintiff does not “finish what she starts.”(Tr.
223, 226). She also indicated that Plaintiff needed help following through with appointments,
paperwork, paying bills, and cleaning. (Tr. 223). She reported that Plaintiff “quite often” is too
depressed to get out of bed, but that she goes outside daily. (Tr. 224). She indicated that Plaintiff
can walk, drive, and ride in a car and is able to go out alone. (Tr. 224). She reported that Plaintiff
shops in stores for groceries weekly. (Tr. 224). She reported that Plaintiff reads, watches
television, and listens to music, but has a hard time concentrating and focusing. (Tr. 225). She
reported that Plaintiff spends time with others in person and over the phone on a daily basis. (Tr.
225). She reported that Plaintiff has a hard time getting along with others because she “has little
or no tolerance for constructive criticism or advice.”(Tr. 226). She indicated that Plaintiff’s
ability to get along with authority figures “varies according to her mood swings. She can be very
combative at times.” (Tr. 227). She reported that Plaintiff “doesn’t handle stress at all” and had
Page 15 of 36
been fired from a job because of problems getting along with other people. (Tr. 227). She
reported that Plaintiff’s impairments impact her ability to lift, squat, bend, stand, walk, and get
along with others. (Tr. 226). She reported that Plaintiff does not use a cane. (Tr. 227).
On June 29, 2011, Plaintiff completed a Disability Report-Appeal. (Tr. 239). She
reported that her anxiety has “increased significantly” and her depression “has become out of
control.” (Tr. 239). She reported that she “had to move in a roommate to help with daily tasks,
cleaning, cooking, etc.” (Tr. 239). She reported that she was not motivated to care for herself,
forgets to eat, and needs to be reminded to shave. (Tr. 243). She reported that she no longer goes
out with friends, she “pretty much sleeps” until her children come home from school, “gets them
taken care of” and then goes back to bed. (Tr. 244).
On July 11, 2012, Plaintiff appeared and testified at the ALJ hearing. (Tr. 33). Plaintiff
testified that she lives alone with her three children, twins, age 11, and a younger son, age 8. (Tr.
36). Plaintiff explained that her post-traumatic stress disorder stemmed from being sexually
abused as a child by her father, being in an abusive marriage for four years, being raped, and
having a patient die in her arms while she was working as a CNA. (Tr. 39-40). Plaintiff testified
that she was slightly dyslexic, but she can read, write, and understand the English language. (Tr.
40). Plaintiff admitted that she babysat for her neighbor three hours a day, Monday through
Thursday, off and on for about two years. (Tr. 42-43).
Plaintiff testified that she first used marijuana when she was eight years old, and had last
used it in October of 2011. (Tr. 33). She testified that she quit from the time that she was
seventeen years old until March of 2011. (Tr. 44).
I have severe anxiety. I have a hard time going places where there’s crowds of people. I
have a hard time dealing with my kids at their sporting events. I can’t concentrate. I have
Page 16 of 36
a really hard time remembering things. I find myself depressed and sitting in the
bathroom or sitting in my room, crying my eyes out for hours at a time, and I don’t know
(Tr. 48). She testified that her crying spells occurred two or three times a week and last anywhere
from five minutes to an hour. (Tr. 67). Plaintiff testified that she had suicidal thoughts every
other month, and began to cry as she testified that she has panic attacks anytime she leaves her
house. (Tr. 66). She testified that she had panic attacks four or five times per week that last from
five minutes to an hour, and that she had a panic attack in the car on her way to the hearing. (Tr.
67). She also testified “I have extreme mood swings” that occur daily, where she will get angry
and “snap at the drop of the a dime” and other times is “just this happy-go-lucky person that’s
running around like a chicken with her head cut off…very manic.” (Tr. 72). She testified that she
had no energy or motivation, had lost weight, and only slept two to three hours per night with
severe nightmares. (Tr. 64-65). Plaintiff testified that her medications made her “constantly
tired,” nauseous, shaky, and made it difficult for her to remember things. (Tr. 64).
She also testified “I don’t deal well with authority. I’ve gotten into lots of trouble because
of it at work.” (Tr. 61). She described several problems with authority figures at her previous
jobs, but admitted that she had been able to continue working at McGuire Memorial, her most
recent job, when she was transferred to in-home care and had less contact with supervisors. (Tr.
61-63). Plaintiff testified that she had two or three friends, and that her neighbor and his wife
help her get groceries. (Tr. 68). Plaintiff admitted that she was able to participate in group
counseling for about four months, from February to June of 2012. (Tr. 47).
Plaintiff testified that she had received physical therapy for a month and a half for her
back problems, but had to stop because she did not have transportation. (Tr. 53). She testified
that she is treated only with Effexor and Flexeril for her fibromyalgia. (Tr. 51). She testified to
Page 17 of 36
problems with lifting, sitting, walking, getting in and out of bed, and doing her chores. (Tr. 5455). However, she admitted that she occasionally cooks full meals with help from her children,
neighbor, and boyfriend. (Tr. 65). Plaintiff testified that she can walk about two blocks at a time
and uses a cane to ambulate about two weeks out of a month. (Tr. 69). She testified that the
muscles in her arms “constantly feel like they’re flexed” and that her fingers “lock up.” (Tr. 70).
A VE also appeared and testified. (Tr. 74). The VE testified that, given the ALJ’s RFC as
described below, Plaintiff could not perform any past relevant work. (Tr. 80). However, he
testified that Plaintiff could perform work as a cleaner, housekeeper - - DOT 323.687-014, a
press hand - - DOT 583.687-010, and an assembler, small products II - - DOT 739.687-030. (Tr.
81). Plaintiff’s attorney asked the ALJ, “I don’t think you included any interaction with the
supervisors- - that was not discussed, correct?” (Tr. 82). The ALJ replied “If you want to make
supervisors different than coworkers, you may. I basically said coworkers occasionally.” (Tr.
82). Plaintiff’s attorney then asked the VE whether any jobs would exist if Plaintiff could not
have any interaction with coworkers and supervisors at all, and the VE testified “that would
exclude those occupations I identified.” (Tr. 82). The VE also testified that if Plaintiff would be
off task more than twenty percent a day due to cognitive impairments from medication or anxiety
attacks, or would be absent more than four days per month, there would be no work Plaintiff
could perform. (Tr. 83).
On July 23, 2012, the ALJ issued her decision. (Tr. 25). At step one, the ALJ found that
Plaintiff was insured through December 31, 2010 and had not engaged in substantial gainful
activity since October 3, 2010, the alleged onset date. (Tr. 16). At step two, the ALJ found that
Plaintiff’s drug abuse, depression, anxiety, bipolar disorder, panic disorder, posttraumatic stress
disorder, fibromyalgia, degenerative disc disease of the lumbar spine, myositis, and migraines
Page 18 of 36
were severe. (Tr. 16). At step three, the ALJ found that Plaintiff did not meet or equal a Listing.
(Tr. 17). The ALJ found that Plaintiff had the RFC to perform less than the full range of light
work with two unscheduled five minute breaks, limited to occasionally using hand/arm levers or
cranks bilaterally, foot and leg pedals or levers bilaterally, climbing stairs, crouching, squatting,
kneeling, and crawling on hands or knees or feet. (Tr. 19). Plaintiff was precluded from climbing
any rope, ladder, scaffolding, or pole, noise intensity levels of loud and very loud, working in
high exposed places, around fast moving machinery on the ground, around or with sharp objects,
and around or with toxic or caustic chemicals. (Tr. 19). Plaintiff was limited to only occasionally
interacting with coworkers and avoiding altogether direct interaction with the public. (Tr. 19). At
step four, the ALJ found that Plaintiff could not perform any past relevant work. (Tr. 23).
However, at step five, the ALJ found that Plaintiff could perform other work in the national
economy in positions like a housekeeper, a press hand, and an assembler. (Tr. 23-24).
Plaintiff Allegations of Error
A. Failing to include additional physical limitations in the RFC
Plaintiff asserts that the ALJ’s physical RFC assessment is flawed because she failed to
“address any limitation with regard to bending.” (Pl. Brief at 7). Plaintiff continues, “[t]he ALJ
failed to explain why she assigned limitations for all other postural activities except for bending,
which can certainly be inferred would be affected by [Plaintiff’s] fibromyalgia, degenerative disc
disease of the lumbar spine, and myositis.” (Pl. Brief at 7). Defendant responds that the ALJ
accounted for limitations in bending by assessing limitations in climbing, balancing, kneeling,
crouching, and crawling. (Def. Brief at 17-18). Defendant correctly cites Social Security Rulings
to note that:
Postural limitations or restrictions include activities such as climbing ladders, ropes, or
scaffolds, balancing, kneeling, crouching or crawling. Social Security Ruling (SSR) 96Page 19 of 36
9p, at * 7. Furthermore, “[s]tooping, kneeling, crouching, and crawling are progressively
more strenuous forms of bending parts of the body, with crawling as a form of
locomotion involving bending.” SSR 85-15, at * 7. Stooping involves “bending the body
downward and forward by bending the spine at the waist,” crouching involves “bending
the body downward and forward by bending both the legs and spine,” and kneeling
involves “bending the legs at the knees to come to rest on one or both knees.” Id.
(Id.). However, Plaintiff responds that the ALJ did not include any limitations for stooping, so
the RFC is inadequate. (Pl. Reply at 1-2).
Plaintiff is correct that the ALJ did not include any limitations for stooping. However, the
ALJ properly rejected Plaintiff’s claimed symptoms related to her back pain. When making an
RFC assessment, “the adjudicator must consider whether there is an underlying medically
determinable physical or mental impairment(s)…that could reasonably be expected to produce
the individual's pain or other symptoms.” SSR 96-7P. Then:
[W]henever the individual's statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by objective medical
evidence, the adjudicator must make a finding on the credibility of the individual's
statements based on a consideration of the entire case record.
SSR 96-7P. Conservative medical treatment can undermine a claimant’s credibility. SSR 96-7P.
(“[T]he individual's statements may be less credible if the level or frequency of treatment is
inconsistent with the level of complaints.”). Also, “[o]ne strong indication of the credibility of an
individual's statements is their consistency, both internally and with other information in the case
record.” SSR 96-7P.
Here, the ALJ found that the underlying medically determinable physical and mental
impairments could reasonably be expected to produce the individual’s pain or other symptoms.
(Tr. 21). However, the objective medical evidence did not substantiate Plaintiff’s statements
about the intensity, persistence, and limiting effects of her symptoms. The ALJ noted that, prior
to Plaintiff’s onset date, she had positive straight leg raise test, “some” muscle spasms, and
Page 20 of 36
decreased reflexes, but that these symptoms had not continued. (Tr. 21). None of these findings
were present during the relevant period. The ALJ cited to Plaintiff’s MRI, which indicated only
minimal abnormalities, and the fact that she had no focal motor or sensory deficits during the
relevant period. (Tr. 21, 436, 492-93).
The ALJ proceeded to make a credibility assessment, and properly discounted Plaintiff’s
credibility on the grounds that she had received only conservative treatment and her statements
were inconsistent. (Tr. 22). Aside from a short course of Valium and Percocet in December of
2009, Plaintiff did not receive any treatment prior to the relevant period. (Tr. 270, 273).
Specifically, when she reported that she had bruised her foot in April of 2010 after “walking
around in Hershey Park,” she was taking only over-the-counter ibuprofen for her foot pain. (Tr.
263). She “decline[d] stronger pain medications.” (Tr. 263). As of September 28, 2010,
Plaintiff’s medications included only Klonopin, Depakote, and Zoloft, all of which were
prescribed for her mental impairments, 5 and Albutrol, which is used to treat asthma, 1-A
Attorneys' Dictionary of Medicine A-4200.
During the relevant period, Plaintiff complained of back pain during her hospitalization
in December of 2010 for her Klonopin overdose. (Tr. 325-26). However, she was not treated
with any acute intervention or narcotics, only anti-inflammatories, because her abnormalities on
exam were “minimal.” (Tr. 325-26). At her emergency room visit on December 28, 2010, her
medications included only Abilify, Buspar, Klonopin, and Paxil, which were all prescribed to
Depakote is “[t]he trademark name of a medicine used in the treatment of absence seizures
(clouding of consciousness).” 2-D Attorneys' Dictionary of Medicine D-33059. Zoloft is “The
tradename of a medicine containing sertraline hydrochloride, used to relieve mental depression.”
6-Z Attorneys' Dictionary of Medicine Z-125814.
Page 21 of 36
treat her mental impairments. (Tr. 341). 6 Plaintiff was treated with ibuprofen for groin pain
beginning in June of 2011, (Tr. 439, 457, 462), but the groin pain resolved after her
hysterectomy on in October of 2011. (Tr. 430). Throughout 2011, Plaintiff’s only other
medications were varying courses of Abulterol, Zoloft, Depakote, and Klonopin. (Tr. 447, 466).
Through March 5, 2012, the only other additional medications taken by Plaintiff were prednisone
for her asthma and zithromax, Flovent and Bactrim for her bronchitis. (Tr. 471, 480, 491). On
March 13, 2012, Plaintiff was prescribed Flexeril 10mg, three times a day, for ten days, for her
fibromyalgia and back pain. (Tr. 495). On March 30, 2012, Plaintiff was no longer taking
Flexeril. (Tr. 501, 505). On April 13, 2012, Plaintiff was again prescribed Flexeril, 10mg, only
one time per day, for sixty days. (Tr. 509). In sum, the records show that, during the relevant
period, Plaintiff was treated for her musculoskeletal pain and fibromyalgia only with antiinflammatories during her four day hospitalization in December of 2010. She did not receive any
treatment for her musculoskeletal pain or fibromyalgia whatsoever for another fifteen months,
until March 13, 2012, when she was prescribed ten days of Flexeril. At the time of the hearing,
she had again been prescribed Flexeril, but only once per day at bedtime. This is very
conservative treatment that significantly undermines her credibility.
Multiple other inconsistencies exist in the record. For instance, Plaintiff testified that she
had stopped smoking marijuana at age seventeen, and did not start again until March of 2011,
when she consumed marijuana until October of 2011. (Tr. 33, 44). However, Plaintiff reported in
Abilify is “[t]he trademark name of an atypical neuroleptic used as an antipsychotic,” 1-A
Attorneys' Dictionary of Medicine A-382. Buspar is “[t]he trademark name of a medicine used to
relieve anxiety,” 1-B Attorneys' Dictionary of Medicine B-18682. Klonopin is “[t]he trademark
name of a medicine used to treat epileptic seizures.” 3-K Attorneys' Dictionary of Medicine K64916. Paxil is “[t]he brand name of a preparation containing paroxetine hydrochloride,” which
is “[a] drug used as an antidepressant.” 4-P Attorneys' Dictionary of Medicine P-87806; 4-P
Attorneys' Dictionary of Medicine P-88326.
Page 22 of 36
December of 2010 that she had been consuming marijuana, and her drug test was presumptively
positive for marijuana. (Tr. 317, 347). In contrast, four months later, she reported that she had
been sober for “a year and a half” during her consultative exam. (Tr. 391). Similarly, she denied
marijuana use throughout the period between March and October of 2011. (Tr. 446, 452, 459).
Plaintiff also provided different explanations for her Klonopin overdose in December of 2010.
(Tr. 316, 347). Upon first arriving in the emergency room, she admitted that she had taken them
with the intent to commit suicide, and her mother explained that she took them because her
boyfriend had broken up with her. (Tr. 345, 352). However, once Plaintiff realized she was going
to be involuntarily committed, she stated that she took the sleeping pills because she wanted to
“calm down” after fifteen friends called her to ask how she was. (Tr. 316). As another example,
Plaintiff told providers at Norlanco that she injured her foot while “walking around Hershey
Park.” (Tr. 263). She was informed that she did not break her foot. (Tr. 263). Six days later, she
told her psychiatrist that she did break her foot, and that it occurred while running or walking ten
miles on a treadmill. (Tr. 380).
Even if the ALJ had erred in failing to assess an additional limitation of stooping, such
error would have been harmless. Two of the three occupations identified by the VE and the ALJ
do not require stooping. The Dictionary of Occupational Titles for the press hand and assembler
positions state “Stooping: Not Present - Activity or condition does not exist.” (DICOT 583.687010, 739.687-030). Further:
[A] number of other courts have found harmless error where an alleged limitation that
was not included in the ALJ's hypothetical (or in the RFC) was not necessary to perform
one or more of the jobs identified by the VE, according to the DOT. E.g. Caldwell v.
Barnhart, 261 F. App'x 188, 190 (11th Cir.2008) (environmental exposure); Powell v.
Astrue, CIV. SKG 10–02677, 2013 WL 3776948, at *9 (D.Md. July 17, 2013) (collecting
Fourth Circuit district court cases). However, other courts have refused to find harmless
error in certain circumstances, such as when numerous components factor into each
occupation under the DOT. E.g. Greenwood v. Barnhart, 433 F.Supp.2d 915, 928
Page 23 of 36
(N.D.Ill.2006) (observing “the reality that occupational availability is the VE's expertise
and not the Court's.”)
Rochek v. Colvin, 2:12–CV–01307, 2013 WL 4648340 at *12 (W.D.Pa. Aug.23, 2013); see also
Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005).
Plaintiff further asserts that she “testified that she uses a cane to ambulate, yet the ALJ
failed to address any cane use in her RFC.” (Pl. Brief at 7). Defendant responds that Plaintiff did
not “require” the use of a cane to ambulate, so an additional restriction based on her use of a cane
was unnecessary. (Def. Brief at 18). Defendant explains that:
The ALJ noted that Sanchez testified that she used a cane to ambulate at times, but that
the cane was not prescribed by a physician (Tr. 20, 22, 69). The ALJ also discussed the
MRI of the lumbar spine which indicated that Sanchez had only minimal degenerative
changes with mild circumferential disc bulge and mild bilateral foraminal narrowing (Tr.
21, 251). The ALJ also noted that in May 2010, Sanchez reported that she had been doing
extreme walking and running 20 miles on a treadmill (Tr. 21, 380) (Tr. 21). The ALJ also
referred to the evidence which showed that Sanchez had a normal gait and station (Tr. 21,
270, 318, 322, 324).
(Def. Brief at 18-19).
An ALJ must find that an assistive device to ambulate be medically-required in order to
include it as an exertional limitation. SSR 96-9p. Specifically:
Medically required hand-held assistive device: To find that a hand-held assistive device is
medically required, there must be medical documentation establishing the need for a
hand-held assistive device to aid in walking or standing, and describing the circumstances
for which it is needed (i.e., whether all the time, periodically, or only in certain situations;
distance and terrain; and any other relevant information).
SSR 96-9p. Plaintiff has not identified any medical documentation “establishing the need for a
hand-held assistive device.” The ALJ properly noted that Plaintiff had a normal gait and station
without using a cane. (Tr. 21). Plaintiff’s mother reported that Plaintiff does not use a cane. (Tr.
227). Thus, substantial evidence supports the ALJ’s decision not to include Plaintiff’s alleged
use of a cane in the RFC assessment.
Page 24 of 36
Failure to assign significant weight to the consulting physician opinion
Plaintiff asserts that the ALJ should have given Dr. Tardibuono’s opinion significant
weight, and that her rationale for discounting his opinion was nonspecific, boilerplate language.
The Court agrees. The ALJ generically wrote that she gave “limited weight to the opinions of
John Tardibuono, D.Ed., because they are not consistent with the evidence of record, including
treating source records, and the claimant’s longitudinal clinical examination findings.” (Tr. 22).
The ALJ did not provide further explanation or any citations to the record. (Tr. 22). This violates
an ALJ’s duty to provide specific, clear reasons for rejecting medical opinion evidence. Brewster
v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986). Moreover, the non-examining state agency
physician, who has medical training, concluded that Dr. Tardibuono’s opinion was consistent
with the medical evidence. (Tr. 89, 91). “[A]n ALJ is not free to set his [or her] own expertise
against that of a physician who presents competent evidence.” Ferguson v. Schweiker, 765 F.2d
31, 37 (3d Cir. 1985). An ALJ impermissibly substitutes her “own judgment for that of a
physician” when she independently reviews and interprets the objective medical evidence. Id.
The ALJ, who does not have medical training, reviewed the same file, and concluded that Dr.
Tardibuono’s opinion was not consistent with the medical evidence. (Tr. 22). This constitutes an
substitution of her own judgment for that of a physician and impermissible reinterpretation of
objective medical evidence.
However, Dr. Tardibuono did not opine that Plaintiff could not work. Plaintiff correctly
points out the Dr. Tardibuono observed that Plaintiff may have “some difficulty with focus due
to mood transitions,” "very likely would have significant conflicts with fellow workers and/or
supervisors," and exhibited other symptoms. (Pl. Brief at 9-10) (citing Tr.at 391-392)). However,
despite these observations, Dr. Tardibuono opined that Plaintiff could perform at least
Page 25 of 36
satisfactorily in all work functions assessed by the mental RFC analysis. 7 (Tr. 395). Thus, while
Plaintiff has some additional limitations in certain areas, she was not precluded from any job
function, including interacting with supervisors. As discussed more fully below, the ALJ’s
failure to assign the limitations identified by Dr. Tardibuono was harmless because the jobs
identified by the VE accommodated for the slight or moderate limitations identified by Dr.
Tardibuono. The Court will therefore not remand based on the ALJ’s failure to provide
sufficiently specific justification to reject Dr. Tardibuono’s opinion because it would not change
the outcome of the decision. Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005)
(remand is not required when it would not affect the outcome of the case).
Failing to include additional mental limitations
With regard to her mental impairments, Plaintiff asserts that the ALJ’s RFC assessment is
flawed because she “failed to address any limitation with regard to [Plaintiff’s] ability to interact
appropriately with supervisors.” (Pl. Brief at 7). Plaintiff also asserts the ALJ should have
included Dr. Weitzner’s opinion that Plaintiff was “"limited in her ability to handle work
demands and changes." (Pl. Brief at 8). However, aside from the opinion evidence, the evidence
cited by Plaintiff does not contradict the ALJ’s RFC assessment. Plaintiff cites to the record at
Tr. 312-26, which contains Plaintiff’s December 2010 inpatient hospitalization at Pennsylvania
Psychiatric Institute, and the record at Tr. 403-04, which was Dr. Rightmeyer’s assessment that
Plaintiff’s suicide potential was low, but that “agree[d] with denial decision.” (Pl. Brief at 8).
However, Plaintiff does not explain how these records support her argument that the ALJ should
have assessed additional mental limitations. Dr. Rightmeyer’s assessment indicates only that
At most, Dr. Tardibuono assigned Plaintiff “moderate” limitations in a few areas, but moderate
limitations are defined as “moderate limitation in the area, but the individual is still able to
function satisfactorily.” (Tr. 394).
Page 26 of 36
Plaintiff’s suicide risk is low, but that he agrees with the denial of benefits decision. (Tr. 403-04).
The ALJ acknowledged Plaintiff’s December 2010 inpatient hospitalization, but noted that it was
an isolated incident, explaining that her need for intensive treatment was neither “ongoing” nor
“persistent.” (Tr. 21). Moreover, at the time of Plaintiff’s hospitalization, she had stopped taking
Depakote or Zoloft. Once Plaintiff was restarted on her medications on March 7, 2011, she did
not need treatment after that through July 23, 2012, the ALJ decision date, except for November
29, 2011, when her medications were again restarted. (Tr. 468). Similarly, Plaintiff cites GAF
scores of 31 to 60, but does not challenge the ALJ’s assignment of little weight to the GAF
scores on the ground that they apply only to a particular point in time and have limited probative
value to Plaintiff’s overall longitudinal functioning. (Pl. Brief at 8) (Tr. 23).
With regard to the opinion evidence, both physicians opined that Plaintiff had moderate
limitations in interacting with supervisors. However, each of the positions the ALJ found
Plaintiff could perform has a “People” value of “8-Taking Instructions-Helping-Not Significant.”
DICOT 323.687-014; DICOT 583.687-010; DOT 739.687-030. Many Courts have held that a
position with this “people” code is one that can be performed despite limitations in interacting
[T]he descriptions of both loader of semi-conductor dies and touch-up screener do not
mention dealing with people and identify the presence of taking instructions from and
helping people in a “Not Significant” amount. Id. §§ 726.684–110, 726.687–030. Thus,
inclusion of a limitation to occasional, brief, and superficial contact with coworkers and
supervisors in the administrative law judge's hypothetical question would not have
excluded two of the three jobs on which the administrative law judge relied, and any error
in omitting that limitation from the question and from the RFC can only have been
harmless.6 See, e.g., Larsen v. Astrue, No. 1:10–CV–00936–JLT, 2011 WL 3359676, at *
15 (E.D.Cal. Aug. 3, 2011) (jobs with “not significant” level of interaction in DOT
appropriate for claimants with RFC specifying limited or occasional coworker contact);
Arsenault v. Astrue, Civil No. 08–269–P–H, 2009 WL 982225, at *3 (D.Me. Apr. 12,
2009) (and cases cited therein).
Page 27 of 36
Shorey v. Astrue, 1:11-CV-414-JAW, 2012 WL 3475790 at *6 (D. Me. July 13, 2012) aff'd,
1:11-CV-00414-JAW, 2012 WL 3477707 (D. Me. Aug. 14, 2012); See also Sweeney v. Colvin,
3:13-CV-02233-GBC, 2014 WL 4294507 at *17 (M.D. Pa. Aug. 28, 2014)(collecting cases).
Consequently, any error in failing to assess limitations in interacting with supervisors was
harmless. Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005).
Plaintiff makes brief reference to the adaptation limitations identified by the physicians,
including limitations in responding appropriately to changes in the work setting, understanding,
remembering and carrying out detailed instructions, making judgments on simple work-related
decision, and responding appropriately to work pressures in a usual work setting. (Tr. 395).
However, she does not explain how these citations advance her argument and thus waives
consideration of these issues. Conroy v. Leone, 316 F. App'x 140, 144 n. 5 (3d Cir. 2009) (citing
Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir.2005).
Even if she had not waived this argument, all of these limitations are also addressed by
the DOT. One aspect of the DOT job descriptions is the identification of “factor[s] designated as
‘Temperaments’ which, in turn, consists of eleven separately-identified components.” Gaspard v.
Soc. Sec. Admin. Com'r, 609 F. Supp. 2d 607, 614 (E.D. Tex. 2009) (citing U.S. Dep’t of Labor
(1991). Revised Handbook for Analyzing Jobs. Washington, DC: Government Printing Office).
The 11 Temperament factors identified for use in job analysis are:
D—DIRECTING, Controlling, or planning activities of others.
R—Performing REPETITIVE or short-cycle work.
I—INFLUENCING people in their opinions, attitudes, and judgments.
V—Performing a VARIETY of duties.
E—EXPRESSING personal feelings.
A—Working ALONE or apart in physical isolation from others.
S–Performing effectively under STRESS.
T—Attaining precise set limits, TOLERANCES, and standards.
Page 28 of 36
U—Working UNDER specific instructions.
P—Dealing with PEOPLE.
J—Making JUDGMENTS and decisions.
Gaspard v. Soc. Sec. Admin. Com'r, 609 F. Supp. 2d 607, 620 (E.D. Tex. 2009) (citing U.S.
Dep't of Labor, Revised Handbook for Analyzing Jobs 10–1 (1991)). The position of a CleanerHousekeeper has only two factors: R and U. DICOT 323.687-014. The position of a press hand
has only one factor: R. DICOT 583.687-010. The position of an assembler has only two factors:
R and T. DICOT 739.687-030.
All of the jobs identified by the ALJ have a Temperament factor of “R,” which is defined
as “performing a few routine and uninvolved tasks over and over again according to set
procedures, sequence, or pace with little opportunity for diversion or interruption.” Gaspard v.
Soc. Sec. Admin. Com'r, 609 F. Supp. 2d 607, 615 (E.D. Tex. 2009) (citing U.S. Dep't of Labor,
Revised Handbook for Analyzing Jobs 10–2 (1991)); DICOT 323.687-014; DICOT 583.687010; DOT 739.687-030. None had a factor of “V—Performing a VARIETY of duties.” Id. Thus,
although the ALJ failed to include any limitations in her ability to respond to changes in the
work setting, such failure was harmless, because none of the jobs identified by the ALJ involve
changes to a work setting.
Similarly, although Dr. Tardibuono indicated limitations in making judgments in the
work setting, none of the jobs identified by the ALJ had a factor of “J- Making JUDGMENTS
and decisions.” DICOT 323.687-014; DICOT 583.687-010; DOT 739.687-030. Moreover,
although Dr. Tardibuono opined that Plaintiff had moderate limitations in responding
appropriately to work pressures in a usual work setting, none of the positions had a characteristic
of “S–Performing effectively under STRESS” and only one, the assembler, required a factor of
“T—Attaining precise set limits, TOLERANCES, and standards.” Id. Thus, any failure to
Page 29 of 36
include these adaptation limitations was harmless, because they are not required by the jobs
identified by the ALJ.
Lastly, Dr. Tardibuono limited Plaintiff to simple tasks and instructions, and indicated
that she would have limitations in understanding, remembering, and carrying out detailed
instructions. However, another factor included in the DOT is the reasoning level. The first two
positions identified by the ALJ, the housekeeper and press hand, requires only “Level 1”
reasoning, which is defined as the ability to “[a]pply commonsense understanding to carry out
simple one- or two-step instructions. Deal with standardized situations with occasional or no
variables in or from these situations encountered on the job.” DICOT 323.687-014; 583.687-010.
The third position, an assembler, requires only “Level 2” reasoning, which is defined as the
ability to “[a]pply commonsense understanding to carry out detailed but uninvolved written or
oral instructions. Deal with problems involving a few concrete variables in or from standardized
situations.” DICOT 739.687-030. As another District Court in the Third Circuit has explained:
There is a growing consensus within this Circuit and elsewhere that “[w]orking at
reasoning level 2 [does] not contradict the mandate that [a claimant's] work be simple,
routine, and repetitive.” Money v. Barnhart, 91 Fed. App'x 210 (3d Cir.2004). See e.g.
Grasty v. Astrue, 661 F.Supp.2d 515, 523–24 (E.D.Pa.2009) (Robreno, J.) (concluding
the jobs named, with reasoning levels of 2, to be “entirely appropriate,” where claimant
was limited to simple, repetitive tasks, but not reaching the appropriateness of level–3
jobs for claimant); Jones v. Astrue, 570 F.Supp.2d 708, 715–16 (E.D.Pa.2007) (Pratter,
J.) (finding no “apparent inconsistency”) (and cases cited), aff'd, 275 Fed. App'x 166 (3d
Cir.2008). see also Hackett, 395 F.3d at 1176 (finding “level-two reasoning appears more
consistent with Plaintiff's RFC” limiting her to “simple and routine work tasks”); Meissl
v. Barnhart, 403 F.Supp.2d 981, 983–85 (C.D.Cal.2005) (Larson, J.) (finding no
inconsistency between level 2 reasoning and claimant's RFC limiting her to “simple,
repetitive mental tasks”).
Simpson v. Astrue, CIV.A. 10-2874, 2011 WL 1883124 at *6 (E.D. Pa. May 17, 2011).
In sum, even if the ALJ had included limitations in interacting with supervisors,
responding to stress or changes in the work setting, and understanding, remembering, and
Page 30 of 36
carrying out detailed instructions, Plaintiff would still have been able to perform the positions of
a press hand and a housekeeper, which only occasionally requires interacting with supervisors,
do not require the ability to respond to changes, stress, or make judgments in the work setting,
and involve only simple, one or two step instructions. The vocational expert testified that there
were 40,000 positions as a press hand in the national economy with 310 positions in the local
region and 218,000 positions as a housekeeper in the national economy with 1,500 in the local
region. (Tr. 81). Thus, although the Court finds that most of Plaintiff’s allegations are without
merit, the Court also finds that, even if all of Plaintiff’s allegations had merit, there would still
have been jobs in the national economy that Plaintiff could perform.
Failing to find that Plaintiff met or equaled a Listing
Plaintiff asserts that the ALJ should have found that she met Listing 12.04 and 12.06.
Both require that medically determinable impairments result in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.04. The regulations define social
2. Social functioning refers to your capacity to interact independently, appropriately,
effectively, and on a sustained basis with other individuals. Social functioning includes
the ability to get along with others, such as family members, friends, neighbors, grocery
clerks, landlords, or bus drivers. You may demonstrate impaired social functioning by,
for example, a history of altercations, evictions, firings, fear of strangers, avoidance of
interpersonal relationships, or social isolation. You may exhibit strength in social
functioning by such things as your ability to initiate social contacts with others,
communicate clearly with others, or interact and actively participate in group activities.
We also need to consider cooperative behaviors, consideration for others, awareness of
others' feelings, and social maturity. Social functioning in work situations may involve
interactions with the public, responding appropriately to persons in authority (e.g.,
supervisors), or cooperative behaviors involving coworkers.
Page 31 of 36
20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.00. They also define concentration,
persistence, and pace:
3. Concentration, persistence or pace refers to the ability to sustain focused attention and
concentration sufficiently long to permit the timely and appropriate completion of tasks
commonly found in work settings….
On mental status examinations, concentration is assessed by tasks such as having you
subtract serial sevens or serial threes from 100. In psychological tests of intelligence or
memory, concentration is assessed through tasks requiring short-term memory or through
tasks that must be completed within established time limits.
20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.00.
Plaintiff produced no objective or opinion medical evidence that would support a finding
that she had a marked or extreme limitation in any area. Both state agency physicians opined
that, at most, she had moderate limitations. The ALJ found that Plaintiff had moderate
difficulties in social functioning because, although she has panic attacks, mood swings, and
engages in self-harm behaviors, she is able to spend time with others, goes out with friends, and
gets visits from friends. (Tr. 18). The ALJ found that she had mild difficulties in concentration,
persistence, and pace because, although she claimed to have difficulty paying attention, finishing
tasks, and handling stress, she was “noted to have no memory loss and organized thought
process…having an intact recent and remote memory….[and] was able to respond to similarities
at adequate levels of abstraction and complete serial 7’s during a mental status examination.”
(Tr. 18). The ALJ later noted that Plaintiff maintained concentration during the hearing and was
able to read books and watch television. (Tr. 21). Plaintiff, however, asserts that she has marked
limitations in social functioning and concentration, persistence, and pace. (Pl. Brief at 12-14).
Plaintiff supports her claim that she has marked difficulties in social functioning and
concentration, persistence, and pace by citing to her records from Philhaven, her December 2010
hospitalization, and her April 15, 2011 consultative exam. However, these medical records
Page 32 of 36
identify the same symptoms that the ALJ acknowledged-panic attacks, mood swings, self-harm
behaviors, and difficulty getting along with others-but do not contradict the ALJ’s conclusion
that she is able to spend time with others, go out with friends, and get visits from friends.
Plaintiff’s January 18, 2010 Philhaven visit indicates that she had been hospitalized five days
earlier after multiple “close” friends, including her “best friend,” had passed away. (Tr. 370). She
also reported on January 18, 2010 that she gets social support from her boyfriend, who she had
described earlier that year as “very good to her” and a “good sounding board.” (Tr. 280, 370).
With regard to her December 2010 inpatient hospitalization, Plaintiff had reported that no less
than fifteen different friends had called and asked about her. (Tr. 316). During the April 15, 2011
consultative exam, Plaintiff “denied specific acting out or aggression towards people.” (Tr. 390).
Although this consultation indicated low social judgment and other social problems in the
narrative, Dr. Tardibuono opined that Plaintiff was able to perform satisfactorily in all work
functions involving interacting with others. (Tr. 395). The ALJ specifically cited Dr.
Tardibuono’s observations that she goes shopping with her boyfriend, gets visits from friends,
and goes out with friends. (Tr. 19, 395). The Court also notes that in Plaintiff’s June 27, 2011
Appeals Report, she indicated that she had a roommate who had moved in to help with
household tasks and was able to participate in group counseling from February to June of 2012.
(Tr. 40, 239). The ability to initiate social contacts and avoid social isolation indicate strength in
social functioning. 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.00. Consequently, a
reasonable mind could accept the relevant evidence as adequate to conclude that Plaintiff has
moderate, but not marked limitations in social functioning.
Similarly, Plaintiff’s Philhaven records do not support the premise that Plaintiff has
marked limitations in concentration, persistence, and pace. Plaintiff notes that, on January 18,
Page 33 of 36
2010, Plaintiff reported that she was sleeping only three hours per night and used energy drinks
during the day, but this was almost ten months prior to the onset date and she had been off of her
medications for two months at that time. (Tr. 370). Once she was prescribed the appropriate
medication, she indicated to Dr. Nguyen at Philhaven that her sleep was “ok,” even after a recent
breakup with her boyfriend. (Tr. 380). These records also indicate that she joined a gym and was
going three times per week. (Tr. 383). Similarly, she reported her sleep was “okay” at Philhaven
on December 21, 2010. (Tr. 374). although she reported feeling more tired at Philhaven on
March 7, 2011, she never followed-up at Philhaven after that date. Similarly, her inpatient
hospitalization supports the ALJ’s conclusion. By the time of her discharge, she was “improving
in her motivation [and] energy.” (Tr. 314). Moreover, it was her April 15, 2011 consultative
exam that the ALJ cited for the premise that her long-term and recent memory were acceptable,
she could complete cognitive tasks, and she successfully completed serial 7’s. (Tr. 19, 391). The
regulations specifically provide that cognitive tasks and serial sevens are the preferred methods
to assess concentration, persistence, and pace in mental status exams. 20 C.F.R. Part 404,
Subpart P, Appendix 1, Section 12.00. A reasonable mind could accept this evidence as adequate
to conclude that Plaintiff’s limitations in concentration, persistence, and pace were less than
Even if the ALJ had erred in her Paragraph B analysis, remand would not be appropriate.
The ALJ did not address the Paragraph A criteria because she found that Plaintiff did not
establish the Paragraph B criteria. However, the Court notes that Plaintiff has not produced
sufficient medical documentation of the Paragraph A criteria for either Listing. Plaintiff cannot
establish “[m]edically documented persistence, either continuous or intermittent” for depression
or anxiety, as required by Listings 12.04(A) and 12.06(A)(1), because the record does not have
Page 34 of 36
any documentation of depression symptoms between March 7, 2011 and the ALJ decision date
on July 23, 2012, except for Plaintiff’s November 29, 2011 visit to her primary care doctor. After
this visit, when her medications were restarted, she was “negative” for depression, her mood was
stable, and her bipolar disorder was “well-managed.” Even during her December 2010
hospitalization, she denied that her depression was constant and stated she would be depressed
for a “day or two” and then she would feel “good.” (Tr. 316).
Plaintiff also not produced any medical documentation that would satisfy Listing
12.06(A)(2)-(5). Plaintiff cannot establish the requirements in Listing 12.06(A)(2) or (4),
because there is no evidence, medical or otherwise, of “a persistent irrational fear of a specific
object, activity, or situation,” a “compelling desire to avoid the dreaded object, activity, or
situation,” or “obsessions or compulsions. Plaintiff cannot establish Listing 12.06(A)(3) or (5)
because, although she testified to panic attacks and nightmares from PTSD, there is no medical
documentation of “[r]ecurrent severe panic attacks…occurring on the average of at least once a
week” or “recurrent and intrusive recollections of a traumatic experience.” Instead, the record
indicates only sporadic, minimal references to panic attacks. Plaintiff reported that she had one
panic attack per month on January 18, 2010, and after being prescribed Klonopin, reported no
panic attacks on March 8, 2010. (Tr. 383). Plaintiff reported two panic attacks two weeks earlier
on July 14, 2010 and had a “probable” panic attack on December 28, 2010. There is no further
mention of panic attacks at any time through the date of the ALJ decision on July 23, 2012.
Plaintiff never mentioned flashbacks or nightmares from PTSD to any of her treating providers.
Even if the ALJ had erred in evaluating the Paragraph B criteria, Plaintiff would be unable to
establish the Paragraph A criteria. The Court will not remand when the outcome would be
unchanged. Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005).
Page 35 of 36
Therefore, the Court finds that the ALJ made the required specific findings of fact in
determining whether Plaintiff met the criteria for disability, and the findings were supported by
substantial evidence. 42 U.S.C. §§ 405(g), 1382c; Brown, 845 F.2d at 1213; Johnson, 529 F.3d at
200; Pierce, 487 U.S. at 552; Hartranft, 181 F.3d at 360; Plummer, 186 F.3d at 427; Jones, 364
F.3d at 503. Substantial evidence is less than a preponderance of the evidence, but more than a
mere scintilla of evidence. It does not mean a large or significant amount of evidence, but rather
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). Thus, if a reasonable mind might accept the
relevant evidence as adequate to support the conclusion reached by the Acting Commissioner,
then the Acting Commissioner’s determination is supported by substantial evidence and stands.
Monsour Med. Ctr., 806 F.2d at 1190. Here, a reasonable mind might accept the relevant
evidence as adequate. Accordingly, the Court will affirm the decision of the Commissioner
pursuant to 42 U.S.C. § 405(g).
An appropriate Order in accordance with this Memorandum will follow.
Dated: October 14, 2014
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE
Page 36 of 36
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?