Havens v. Colvin

Filing 23

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Yvette Kane on 9/17/14. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
JULIE HAVENS,
Plaintiff
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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CIVIL NO. 3:13-CV-00600
(Judge Kane)

MEMORANDUM
Plaintiff Julie Havens has filed this action seeking review of a decision of
the Commissioner of Social Security ("Commissioner") denying Havens’claim for
social security disability insurance benefits. (Doc. 1).
Disability insurance benefits are paid to an individual if that individual is
disabled and “insured,” that is, the individual has worked long enough and paid
social security taxes. Havens met the insured status requirements of the Social
Security Act through December 31, 2014. Tr. 17. In order to establish entitlement
to disability insurance benefits Havens was required to establish that she suffered
from a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20
C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir.
1990).

I.

BACKGROUND
Havens protectively filed her application for disability insurance benefits on
December 3, 2010, claiming that she became disabled on July 30, 2009. Tr.
14, 124. The doctrine of res judicata limited the beginning of her period of
alleged disability to May 21, 2010. Tr. 14-15. Havens has been diagnosed
with several impairments, including: diabetes, obesity, headaches, high
cholesterol, hypertension, bipolar disorder, and personality disorder. Tr. 1718. On May 27, 2011, Havens’ application was initially denied by the
Bureau of Disability Determination. Tr. 105.
On June 7, 2011, Havens requested a hearing before an administrative law

judge (“ALJ”). Tr. 110. The ALJ conducted a hearing on May 9, 2012, where
Havens was represented by counsel. Tr. 35-63. On July 26, 2012, the ALJ issued
a decision denying Havens’ application. Tr. 14-28. On January 5, 2013, the
Appeals Council declined to grant review. Tr. 1. Havens filed a complaint before
this Court on March 5, 2013. (Doc. 1). Supporting and opposing briefs were
submitted and this case became ripe for disposition on January 9, 2014, when
Havens filed a reply brief. (Docs.14, 19, 22).
Havens appeals the ALJ’s determination on four grounds: (1) the ALJ erred
in finding that Havens did not meet or equal a listing at step three, (2) the ALJ
improperly discounted Havens’ credibility, (3) the ALJ erroneously rejected the
2

opinion of Havens’ treating physician, and (4) the ALJ’s reliance on the opinion of
a state agency physician was flawed. (Doc. 14). For the reasons set forth below,
the decision of the Commissioner is affirmed.
II.

STATEMENT OF RELEVANT FACTS
Havens is 45 years of age, has a Bachelor’s degree and two Associate’s
degrees, and is able to read, write, speak, and understand the English
language. Tr. 38-39, 169. Havens’ past relevant work includes work as a
home health care resident nurse, which is classified as medium, skilled
work. Tr. 45-46.
A.

Havens’ Mental Impairments Prior to the Relevant Period

In July 2003, and again in August 2003, Havens was hospitalized due to her
mental impairments. Tr. 208-11, 216-19. In 2007, Havens began receiving
psychiatric treatment from Matthew Berger, M.D. and his staff.1 Tr. 374-429.
In the year-and-a-half period prior to the relevant period, Havens presented
to Dr. Berger seven times. Tr. 376-94, 527-30. Throughout much of 2009, Dr.
Berger’s objective findings were relatively similar. At each appointment, Dr.
Berger found that Havens’ affect was appropriate and her speech was clear and
fluent. Id. Havens’ language processing was consistently intact, her thought
processes demonstrated coherence and logic, and her associative thinking was
1

Dr. Berger’s staff consisted of Amy Blitz, CRNP, Teresa Clark, CRNP, and Martin Kravchick,
LCSW. For simplicity, Dr. Berger and his staff will collectively be referred to as “Dr. Berger.”

3

intact. Id. She was alert and oriented and her immediate, recent, and remote
memory was intact. Id. Havens’ attention span and concentration were normal,
her judgment was realistic and intact, and her insight was intact and appropriate.
Id.
At each appointment, Havens denied anxiety and depression, and Dr. Berger
noted that she did not demonstrate any symptoms of anxiety or depression. Id. Dr.
Berger repeatedly diagnosed Havens with Bipolar I Disorder accompanied by
depression, and Personality Disorder NOS. Id. Throughout much of 2009, Dr.
Berger assigned Havens a GAF score of fifty-seven.2 Id.
By December 23, 2009, Havens mental condition deteriorated slightly. Tr.
376. Havens was struggling with being separated from her husband and estranged
from her oldest daughter; she told Dr. Berger that she “could be better.” Id.
However, Havens denied anxiety or depression, and Dr. Berger wrote that Havens
did not demonstrate any symptoms of anxiety or depression. Id. Dr. Berger’s
objective findings remained unchanged from previous appointments, as did his
diagnoses. Tr. 377. Dr. Berger assigned a GAF score of fifty-two. Id.
On April 12, 2010, Havens returned to Dr. Berger for her last appointment
prior to the relevant period. Tr. 527-30. Havens reported “having difficulty
2

A GAF score between 51 and 60 indicates “moderate 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).” Diagnostic and
Statistical Manual of Mental Disorders, 34 (4th ed., Text rev., 2000).

4

dealing with people due to the illness” and stated it did not matter if she was on
medication or not. Tr. 527. Havens stated that she was no longer taking her
medications. Id. Havens again denied anxiety or depression, and Dr. Berger again
opined that she did not demonstrate any symptoms of anxiety or depression. Id.
Havens was cooperative, though she displayed anxiety and depression consistently
throughout the appointment. Tr. 529. Dr. Berger assigned a GAF score of fiftyone. Id.
B.

Havens’ Mental Impairments During the Relevant Period

On September 14, 2010, Havens reported “having issues with [her]
memory” and being “very forgetful to the point where [her] children [were]
noticing.” Tr. 531. Havens also reported increased impulsivity and worsening
memory, but decreased sadness and decreased feelings of hopelessness. Id.
Havens still was not using her medication at that time; she denied depression or
anxiety, and Dr. Berger opined that she did not “demonstrate any symptoms of”
depression or anxiety.3 Id.
Havens was cooperative with an improved mood and appropriate affect. Tr.
532. Her speech was clear, fluent, spontaneous and tearful; she had intact
language processing, coherent and logical thought processes, and intact associative

3

Havens denied anxiety or depression at every single appointment with Dr. Berger, and Dr.
Berger consistently opined that she did not demonstrate any symptoms of anxiety or depression.
Tr. 534, 538, 542, 546, 641, 717, 720, 729, 733, 737.

5

thinking. Id. Havens was alert and oriented, her recent and remote memory was
intact, she had a normal attention span and concentration, her judgment was intact
and realistic, and she had appropriate and intact insight. Id. Havens was
diagnosed with Bipolar I Disorder NOS and Personality Disorder, NOS. Id. Dr.
Berger noted that Havens’ bipolar illness and depression were improving, and
assigned a GAF score of sixty. Id.
On November 11, 2010, Havens reported doing “okay” but again noted
issues with memory. Tr. 534. Havens was anxious and depressed, but otherwise
Dr. Berger’s objective findings were identical to his findings in September 2010.
Tr. 536. Havens was taking her medication as prescribed. Tr. 534. Dr. Berger
opined that Havens’ depression was ongoing, anxiety was increased, and bipolar
illness was stable; he again assigned a GAF score of sixty. Tr. 536.
On December 16, 2010, Havens reported feeling “out of control” and buying
things she did not need. Tr. 538. Dr. Berger noted that Havens was anxious and
depressed, but otherwise noted identical objective findings to his previous
examinations of Havens. Tr. 540. Dr. Berger diagnosed Havens with depressive
disorder, major and recurrent. Id. He believed that Havens’ anxiety was increased,
her depression was ongoing, and her bipolar illness was exacerbated; he assigned a
GAF score of sixty. Id.

6

At a January 3, 2011 appointment, Havens stated that she was feeling better.
Tr. 542. She reported no shopping or impulsive behaviors, but did state that she
felt manic and was unable to complete tasks. Id. Dr. Berger’s objective findings
were identical to those from December 2010. Tr. 544. Dr. Berger stated that
Havens’ anxiety, depression, and bipolar disorder were all increased and “related
to situational stressors.” Id. He again diagnosed Havens with, inter alia, major
depressive disorder and assigned a GAF score of fifty-seven. Id.
On February 3, 2011, Havens stated that she was doing “so-so” and reported
her mood to be a four out of ten. Tr. 546. Dr. Berger’s objective findings were
unchanged. Tr. 548. Dr. Berger stated that Havens’ anxiety, depression, and
bipolar disorder were all increased and “related to situational stressors,” again
diagnosed Havens with major depressive disorder, and assigned a GAF score of
fifty-seven. Id.
On March 10, 2011, Havens presented to Dr. Berger for psychiatric
clearance related to bypass surgery. Tr. 641. Despite understanding the dietary
restrictions that would accompany bypass surgery, Havens stated that she could
“not give up soda” and reported snacking at night and using food for comfort. Id.
Dr. Berger stated that “since 2007 [Havens] has remained relatively stable and
reports today that [her] mood is averaging 5/10.” Id. Havens reported that her

7

bipolar illness was “alleviated by Medications.” Id. While Havens did report
mood swings, she denied any manic episodes. Id.
Dr. Berger’s objective findings were essentially unchanged, though he noted
that Havens’ mood was no longer anxious and depressed; rather, she displayed
“comfort and cooperation” during their encounter. Tr. 647. Dr. Berger observed
that Havens’ anxiety, depression, and bipolar disorder were all stable, and assigned
a GAF score of fifty-seven. Tr. 649. Dr. Berger was unable to clear Havens for
bypass surgery because of concerns with Havens’ “inability to maintain current
dietary recommendations as per nutritionist and [Havens’] comment ‘I can’t give
up soda.’” Id. On April 7, 2011, Dr. Berger gave Havens clearance for the gastric
bypass surgery. Tr. 648.
On June 27, 2011, Havens reported that her daughter had recently committed
suicide. Tr. 741. Havens was very angry and was having difficulty coping with
her daughter’s death. Id. Havens’ mental impairments remained stable, and her
GAF score remained fifty-seven. Tr. 742-43. However, by July 27, 2011, Havens
reported having no support, being more irritable, having increased mood swings,
and reported her mood to be a two out of ten. Tr. 737. Havens had an angry
attitude and displayed irritability, but otherwise Dr. Berger’s objective findings
remained unchanged. Tr. 739. Dr. Berger opined that Havens’ anxiety, depression,
and bipolar disorder were “improving and related to situational stressors.” Id. He
8

assigned Havens a GAF score of forty-nine,4 and scheduled an appointment for
Havens with a therapist. Tr. 739-40.
On August 24, 2011, Havens reported feeling “a little better;” her mood
swings persisted but were less frequent. Tr. 733. She reported feeling less
impulsive, and reported a mood of four or five out of ten. Id. Havens had an angry
attitude but improved mood from the previous visit; otherwise, Dr. Berger’s
objective findings were unchanged. Tr. 735. Dr. Berger again diagnosed Havens
with major and recurrent depressive disorder, and assigned a GAF score of fortynine. Id.
On September 26, 2011, Havens felt more depressed, irritable, and
impulsive. Tr. 729. She stated that her mood was five out of ten, and reported that
therapy had “been very helpful.” Id. Dr. Berger’s objective findings were largely
unchanged from August 2011. Tr. 731. Dr. Berger opined that Havens’ anxiety,
depression, and bipolar disorder were improving and were related to situational
stressors. Tr. 731. He assigned Havens a GAF score of forty-nine. Id.
On October 24, 2011, Havens reported in improvement in her mood, and she
again stated that therapy had been very helpful. Tr. 725. Dr. Berger’s findings
were unchanged from the September 2011 visit. Tr. 725-27. On November 22,
4

A GAF score of 41–50 indicates “serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) [or] any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).” Diagnostic and Statistical Manual of Mental
Disorders, 34 (4th ed., Text rev., 2000).

9

2011, Havens reported no mania, and reported feeling less depressed, irritable,
impulsive, and isolative. Tr. 720. She denied any symptoms of depression or
anxiety, and Dr. Berger stated that she did not exhibit any symptoms of anxiety or
depression. Id. Havens’ mood had improved, but otherwise her objective findings
were unchanged. Tr. 723. Dr. Berger increased Havens’ GAF score to fifty-six.
Id.
By December 20, 2011, Havens’ mood had increased to a six or seven out of
ten, she reported feeling less depressed, isolative, and impulsive, and reported no
mania. Tr. 717. Though Havens had an angry attitude, her mood was euthymic,
her affect was appropriate, and she had good eye contact. Id. Dr. Berger’s
objective findings remained unchanged, and he again assigned a GAF score of
fifty-six. Tr. 719.
On January 31, 2012, Havens presented for her final appointment with Dr.
Berger. Tr. 713-16. Havens stated that she was exhausted because her grandson
had recently been baptized; she reported having “50% legal custody” of her
grandson. Tr. 713. Though she was exhausted, Havens stated that her grandson
made her “so happy.” Id. Havens was doing well, and Dr. Berger noted that her
mood had remained even and she was less irritable and impulsive. Id. Havens
rated her mood as a seven out of ten, and though she had mild depression from her
daughter’s death, Havens stated that she was “able to handle it.” Id.
10

Havens reported an increased energy level, less frequent irritability, less
frequent isolative behavior, and decreased impulsiveness. Id. She denied any
symptoms of anxiety or depression, and Dr. Berger did not believe she
demonstrated any symptoms of anxiety or depression. Id. Havens had a euthymic
mood, her affect was appropriate to mood, and her speech was clear, fluent, and
spontaneous but not “overproductive.” Tr. 715. Havens’ language processing was
intact, her thought processes were coherent and logical, and her associative
thinking was intact. Id. Havens was alert and oriented, her immediate, recent and
remote memory were intact, she had normal attention span and concentration, and
her judgment and insight were intact. Id. Dr. Berger diagnosed Havens with
“Bipolar I Disorder Current Depressed NOS” and Personality Disorder NOS. Id.
He opined that her anxiety, depression, and bipolar illness were improving and
related to situation stressors, and assigned a GAF score of fifty-six. Id.
C.

Residual Functional Capacity Assessments

On February 18, 2010, Dr. Berger completed an assessment of Havens’
work-related limitations (“First Assessment”). Tr. 374-75. Dr. Berger opined that
Havens had marked restrictions in her ability to: (1) understand and remember
short, simple instructions; (2) carry out short, simple instructions; (3) understand
and remember detailed instructions; (4) carry out detailed instructions; (5) make
judgments on simple work-related decisions; (6) interact appropriately with the
11

public, co-workers, and supervisors; (7) respond appropriately to work pressures in
a usual work setting; and (8) respond appropriately to changes in a routine work
setting. Tr. 374. On August 10, 2011, Dr. Berger stated that these functional
limitations still remained. Tr. 687.
On March 30, 2011, Mark Hite, Ed.D., a state agency consultant, reviewed
Havens’ medical file and completed a residual functional capacity assessment. Tr.
98-99. Dr. Hite did not believe that Havens had any limitations in her
understanding, memory, concentration, or persistence. Tr. 98. He believed that
Havens was moderately limited in her ability to accept instructions and respond
appropriately to criticism from supervisors, due to an impaired ability to
“respond[] to pressures.” Id. Dr. Hite opined that Havens did not “demonstrate
significant functional limitations from a psychological point of view,” though she
did isolate somewhat. Tr. 99. Dr. Hite believed that Havens was capable of
performing competitive work tasks. Id.
On April 19, 2012, Dr. Berger completed a medical source statement
detailing the work limitations caused by Havens’ mental impairments (“Second
Assessment”). Tr. 757-60. Dr. Berger noted that, at times, Havens suffered from
mood disturbances, emotional lability, a blunt, flat, or inappropriate affect, manic
syndrome, hostility, and irritability. Tr. 757. Dr. Berger listed Havens’ prognosis
as fair, and opined that she suffered from “no cognitive impairment.” Tr. 758. Dr.
12

Berger further opined that Havens was likely to miss three days of work each
month due to her mental impairments. Tr. 759.
Dr. Berger believed that Havens’ mental impairments resulted in a fair
ability5 to: (1) remember work-like procedures; (2) understand and remember very
short and simple instructions; (3) sustain an ordinary routine without special
supervision; (4) work closely with others without being unduly distracted; (5)
complete a normal work day/week without interruptions from psychologically
based symptoms; (6) perform at a consistent pace without an unreasonable number
and length of breaks; (7) accept instructions and respond appropriately to criticism
from supervisors; (8) interact appropriately with co-workers or peers without
unduly distracting them or exhibiting emotional extremes; (9) respond
appropriately to changes in a routine work setting; and (10) deal with normal work
stress. Tr. 759.
Dr. Berger believed that Havens’ mood lability affected her ability to
respond to changes, make decisions, and interact with others; this resulted in the
aforementioned limitations. Id. Despite these limitations, Dr. Berger believed that
Havens had a good ability6 to maintain attention and to maintain “regular
attendance and be punctual within customary, usually strict tolerances.” Id.
5

The medical source statement states that fair means the individual’s “[a]bility to function in this
area is seriously limited, but not precluded.” Tr. 759.
6
Good means that the individual’s “[a]bility to function in this area is limited but satisfactory.”
Tr. 759.

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Dr. Berger further believed that Havens mood lability resulted in a fair
ability to: (1) understand and remember detailed instructions; (2) carry out detailed
instructions; (3) set realistic goals or make plans independently of others; (4) deal
with the stress of semiskilled or skilled work; (5) interact appropriately with the
general public; (6) maintain socially appropriate behavior; and (7) travel in an
unfamiliar place. Tr. 760.
D.

The Administrative Hearing

On May 9, 2012, Havens’ administrative hearing was conducted. Tr. 35-63.
At that hearing, Havens testified that she was able to attend to her personal care,
perform all household chores, and care for her children. Tr. 40, 46. However, due
to her severe depression, there were times when she did not shower, brush her
teeth, or change her clothes. Tr. 46. Though Havens generally cooked meals,
when she was depressed she would sometimes tell her children to “eat whatever’s
in” the kitchen. Tr. 49. Havens cared for her young grandson overnight once per
week. Tr. 48. Havens stated that on her worst days, she did nothing but sleep and
go to the bathroom. Tr. 47. She stated that she liked to use her computer to play
games and go on Facebook; she also enjoyed reading and watching television. Tr.
41. Havens regularly attended church, civic groups, and clubs. Id.
Havens stated that she had difficulty getting along with other individuals,
“depend[ing] on the situation.” Tr. 42. Havens testified that the medications
14

prescribed for her mental impairments were “pretty effective” though she still had
some difficulty on a daily basis. Tr. 44. She elaborated that by effective she meant
she was “not suicidal.” Tr. 47. Havens stated that she is a “rapid cycler,” meaning
she has manic and depressive episodes several times each day. Id. Her episodes of
mania and depression were more frequent but did not last as long as they had
before she began taking medication. Tr. 52. Havens testified that, when in a
manic mood, she would be unable to concentrate, and unable to read, watch
television, or use the computer. Tr. 50. When depressed, she would be unable to
get out of bed. Id.
After Havens testified, Francis Terry, an impartial vocational expert, was
called to give testimony. Tr. 58. The ALJ asked Ms. Terry to assume a
hypothetical individual with the same age, education, and past work experience as
Havens, who was limited to medium work.7 Tr. 58. The hypothetical individual
was limited to simple, routine tasks, no stress, and “only occasional decision
making [was allowed], and only occasional changes in the work setting” were
allowed. Tr. 59. The individual could have no interaction with the public. Id.
Ms. Terry opined that this hypothetical individual would not be able to
perform Havens’ past relevant work. Id. However, the individual would be
7

Medium Work is defined by the regulations of the Social Security Administration as work that
“involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds. If someone can do medium work, we determine that he or she can
also do sedentary and light work.” 20 C.F.R. § 416.967.

15

capable of performing three other jobs that exist in significant numbers in the
national economy: a laundry worker, a public conveyance cleaner, and a hand
packer. Tr. 46-48. Ms. Terry testified that, if an individual missed two or more
days of work per month “on a consistent and ongoing basis,” the individual would
be unable to maintain gainful employment. Tr. 60.
III.

DISCUSSION
In an action under 42 U.S.C. § 405(g) to review the Commissioner’s

decision denying a plaintiff’s claim for disability benefits, the district court must
uphold the findings of the Commissioner so long as those findings are supported
by substantial evidence. Substantial evidence “does not mean a large or
considerable amount of evidence, but ‘rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v.
N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence has been described as
more than a mere scintilla of evidence but less than a preponderance. Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). In an adequately developed record
substantial evidence may be "something less than the weight of the evidence, and
the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency's finding from being supported by substantial
evidence. "Consolo v. Fed.Mar. Comm’n, 383 U.S. 607, 620 (1966).
16

Substantial evidence exists only "in relationship to all the other evidence in
the record," Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981), and "must take into
account whatever in the record fairly detracts from its weight." Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not
substantial evidence if the Commissioner ignores countervailing evidence or fails
to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058,
1064 (3d Cir. 1993). The Commissioner must indicate which evidence was
accepted, which evidence was rejected, and the reasons for rejecting certain
evidence. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 203 (3d Cir. 2008).
Therefore, a court reviewing the decision of the Commissioner must scrutinize the
record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
The Commissioner utilizes a five-step process in evaluating disability
insurance benefits claims. See 20 C.F.R. § 404.1520; Poulos v. Comm’r of Soc.
Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). This process requires the Commissioner
to consider, in sequence, whether a claimant (1) is engaging in substantial gainful
activity, (2) has an impairment that is severe or a combination of impairments that
is severe, (3) has an impairment or combination of impairments that meets or
equals the requirements of a listed impairment, (4) has the residual functional
capacity to return to his or her past work and (5) if not, whether he or she can
perform other work in the national economy. See 20 C.F.R. § 404.1520. The
17

initial burden to prove disability and inability to engage in past relevant work rests
on the claimant; if the claimant meets this burden, the burden then shifts to the
Commissioner to show that a job or jobs exist in the national economy that a
person with the claimant’s abilities, age, education, and work experience can
perform. Mason, 994 F.2d at 1064.
A.

The ALJ’s Finding at Step Three

Havens argues that the ALJ erred in finding that she did not meet or equal a
listing at Step Three of the sequential evaluation process. (Doc. 14). Specifically,
Havens argues that she meets the criteria for Paragraph C of Listing 12.04. Id.
To be considered disabled at step three of the sequential evaluation process,
an impairment or combination of impairments must meet or medically equal an
impairment listed in the Social Security Administration’s Regulations. Williams v.
Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992). “‘For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely,
does not qualify.’” Id. (quoting Sullivan v. Zebley, 493 U.S. 521, 529–30 (1990))
(emphasis in original). While the ALJ must “fully develop the record and explain
his findings at step three,” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 126 (3d
Cir. 2000), the claimant ultimately “bears the burden of presenting medical
findings showing that her impairment meets or equals a listed impairment.” Id. at
18

120 n. 2. The standard for meeting a listed impairment is higher than the standard
for proving disability at steps four and five. See, Sullivan, 493 U.S. at 532.
Paragraph C of Listing 12.04 is met when an individual has a “[m]edically
documented history of a chronic affective disorder of at least 2 years' duration that
has caused more than a minimal limitation of ability to do basic work activities,
with symptoms or signs currently attenuated by medication or psychosocial
support[.]” 20 C.F.R. Pt. 404, Subpt.P, App. 1, §12.04 (C). The individual’s
disorder must also meet one of three other requirements. The disorder must cause
either: (1) repeated episodes of decompensation, each of extended duration; or (2)
a “residual disease process that has resulted in such marginal adjustment that even
a minimal increase in mental demands or change in the environment would be
predicated to cause the individual to decompensate;” or (3) “[c]urrent history of 1
or more years’ inability to function outside a highly supportive living arrangement,
with an indication of continued need for such an arrangement.” Id.
Havens’ mental impairment does meet the first requirement of Paragraph C;
her impairment has lasted more than two years, and the ALJ found that it did result
in more than a minimal limitation in Havens’ ability to do basic work activities.
Tr. 17, 376-78, 713-16. However, Havens’ mental impairment does not meet or
equal any one of the three subparagraphs of Paragraph C.

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Havens’ medical records do not document a single episode of
decompensation within the relevant period, and thus the requirements of
subparagraph 1 are not met. Havens lives independently with her children; no one
other than Havens or her children live in her two-story home. Tr. 41, 46.
Consequently, the requirements of subparagraph 3 are not met.
Subparagraph 2 requires that even a “minimal increase in mental demands or
change in the environment” would cause an individual to decompensate. 20 C.F.R.
Pt. 404, Subpt.P, App. 1, §12.04 (C) (2). The evidence contained within the
administrative record demonstrates that Havens was able to deal with minimal
increases in mental demands and changes in her environment without
decompensating. For example, in late 2011 Havens gained fifty percent legal
custody of her grandson, a child who was only one year old at the time. Tr. 47,
713, 717. The addition of this young child undoubtedly caused at least a minimal
increase in Havens’ mental demands and changed her environment, yet Havens did
not decompensate.
In April 2011, Havens was cleared by Dr. Berger to undergo gastric bypass
surgery. Tr. 648. This indicates that, at the very least, Dr. Berger felt Havens was
psychologically capable to undergoing the mental demands of surgery, and the
accompanying mental demands of maintaining a strict diet, without
decompensating. Thus, when viewed as a whole, the evidence contained within
20

the administrative record demonstrates that Havens’ mental impairments, while
severe, do not satisfy the requirements of Listing 12.04. Consequently, even
assuming that the ALJ erred in failing to fully explain her findings at Step Three,8
such an error did not affect the outcome of the case and would be harmless. See,
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
B.

Treating Physician Opinion

Havens’ primary argument on appeal relates to the ALJ’s decision to reject
the opinion of Dr. Berger, Havens’ treating physician. (Docs. 14, 22). Havens
argues that Dr. Berger’s opinions were thoroughly and thoughtfully completed, and
were well supported by his treatment notes. Id. Therefore, Havens asserts that Dr.
Berger’s opinions were entitled to significant weight. Id.
The preference for the treating physician’s opinion has been recognized by
the Third Circuit and by all of the federal circuits. See, e.g., Morales v. Apfel, 225
F.3d 310, 316-18 (3d Cir. 2000). When the treating physician's opinion conflicts
with a non-treating, non-examining physician's opinion, the ALJ may choose
whom to credit in his or her analysis, but “cannot reject evidence for no reason or
for the wrong reason.” Id. at 317 (quotingPlummer v. Apfel, 186 F.3d 422, 429
(3d Cir.1999)). In choosing to reject the evaluation of a treating physician, an ALJ
8

The ALJ in this instance analyzed all relevant medical records, and outlined the available
evidence in sufficient detail. Tr. 20-26. The AJL’s decision, when read as a whole, was
sufficient to permit meaningful judicial review, and therefore the ALJ did not err at Step Three.
See, Jones v. Barnhart, 364 F.3d 501, 504-05 (3d Cir. 2004).

21

may not make speculative inferences from medical reports and may reject treating
physician's opinions outright only on the basis of contradictory medical evidence.
Morales, 225 F.3d at 317-18.
Substantial evidence supports the ALJ’s decision to reject Dr. Berger’s
opinions. The ALJ found that Dr. Berger’s opinions were not well supported by
his treatment records, and were contradicted by those records, as well as other
evidence contained within the administrative record. Tr. 25. The ALJ further
found that Dr. Berger’s opinion that Havens suffered from marked limitations was
contradicted by the absence of any abnormal objective mental status findings. Id.
Dr. Berger’s objective findings did contradict his opinion that Havens
suffered from marked limitations in, or a fair ability to perform, several workrelated functions. Dr. Berger consistently found that Havens’ speech was clear,
fluent, spontaneous and tearful. Tr. 531-49, 641-48, 713-44. At every
appointment, Dr. Berger observed that Havens had intact language processing,
coherent and logical thought processes, and intact associative thinking. Id.
Havens was alert and oriented, her recent and remote memory was intact, she had a
normal attention span and concentration, her judgment intact and realistic, and she
had appropriate and intact insight. Id. These findings are inherently inconsistent
with a serious limitation in the ability to remember procedures, remember short
and simple instructions, and remember detailed instructions. Tr. 759-60.
22

While Dr. Berger’s assessments were inconsistent with his treatment notes,
the treatment notes themselves were also internally inconsistent. At every
appointment within the relevant period, Havens denied anxiety or depression. Tr.
531-49, 641-48, 713-44. Dr. Berger also opined that Havens did not demonstrate
any symptoms of anxiety or depression. Id. Yet Dr. Berger several times
diagnosed Havens with major depressive disorder, and consistently stated that her
Bipolar Disorder was accompanied by depression. Id. These inconsistencies
diminished the relative weight of Dr. Berger’s opinions.
The majority of the GAF scores given by Dr. Berger were indicative of
moderate difficulties in occupational functioning, not the marked difficulties
offered by Dr. Berger in his assessments. See, Diagnostic and Statistical Manual
of Mental Disorders, 34 (4th ed., Text rev., 2000). As the ALJ noted, Havens’
mental health treatment was not as intensive as would be expected if someone was
so severely limited and impaired. Tr. 25. Havens visited Dr. Berger every three to
six months, attended a medication checkup every one to three months, and visited a
therapist every two weeks. Tr. 40.
Of additional concern are the inconsistencies between Dr. Berger’s two
assessments, as well as internal inconsistencies in Dr. Berger’s Second
Assessment. In the First Assessment, Dr. Berger opined that Havens had marked
restrictions in her ability to carry out short, simple instructions. Tr. 374. However,
23

in the Second Assessment, Dr. Berger opined that Havens had a good ability carry
out very short and simple instructions. Tr. 759. In the First Assessment, Dr.
Berger stated that Havens was markedly impaired in her ability to make judgments
on simple work-related decisions. Tr. 374. In contrast, in the Second Assessment,
Dr. Berger concluded that Havens had a good ability to make simple work related
decisions. Tr. 759. These inconsistencies undermine both assessments, and
significantly impact the probative value of Dr. Berger’s opinions.
Furthermore, in the Second Assessment, Dr. Berger first stated that Havens
would likely miss three days of work each month due to her mental impairments.
Tr. 758. Dr. Berger later stated that Havens had a good ability to “[m]aintain
regular attendance and be punctual within customary, usually strict tolerances.”
Tr. 759. These two positions contradict one another, as missing two days of work
per month is inconsistent with an employer’s attendance expectations. Tr. 60.
The totality of the evidence contained within the administrative record,
including inconsistencies in Dr. Berger’s own assessments, inconsistencies with
the assessments as compared to the other evidence within the administrative
record, and Havens’ relatively conservative level of treatment, all support the
ALJ’s decision to give limited weight to the assessments offered by Dr. Berger.
The evidence indicates that Dr. Berger’s opinions were not well supported, and the
ALJ did not err in rejecting those opinions.
24

Furthermore, despite the Third Circuit’s express preference for the opinion
of a treating physician, the ALJ was entitled to reject a treating physician’s opinion
if a consultant proffered a contradicting opinion, even if the consultant neither
treated nor examined the claimant. Morales, 225 F.3d at 317. Having been
presented with differing opinions, one pointing to extreme mental limitations
preventing competitive work on a sustained basis, and one indicating that Havens
would be able to meet the demands of competitive work on a sustained basis, the
ALJ was required to credit one opinion over the other. The ALJ credited the
opinion presented by the psychological consultant, and this decision was supported
by substantial evidence. See, Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 362
(3d Cir. 2011).
C.

The ALJ’s Residual Functional Capacity Assessment

Havens next argues that the ALJ erred in giving great weight to the
functional assessment offered by Dr. Hite, but failing to incorporate all of the
functional limitations offered by Dr. Hite. (Docs. 14, 22). Specifically, Havens
contends that the ALJ did not account for Dr. Hite’s opinion that Havens was
moderately limited in her ability to accept instructions and respond appropriately to
criticism from supervisors. Id.
In her decision, the ALJ elected to give “great weight” to the opinion of Dr.
Hite, reasoning that it was “consistent with and . . . supported by the evidence of
25

record, including the claimant’s self-reported activities of daily living.” Tr. 25. In
turn, Dr. Hite opined that Havens was moderately limited in her ability to accept
instructions and respond appropriately to criticism from supervisors. Tr. 98.
However, when asked to explain “in narrative form” the limitations that he had
indicated, Dr. Hite further explained that Havens’ “[s]ocial skills are somewhat
impaired for responding to pressures.” Id. Thus, Dr. Hite’s opinion clarified that
Havens was only impaired in relation to pressures while at work.
When viewed in this context, the ALJ’s opinion properly accounted for the
limitations suggested by Dr. Hite. The ALJ’s residual functional capacity
determination limited Havens to simple, routine tasks and “low stress.” Tr. 20.
The ALJ limited Havens to only occasional decision-making and only occasional
changes in the work setting. Id. These limitations not only accounted for any
difficulty that Havens may have with responding to pressures, but they also had the
effect of limiting the instructions that Havens would receive from her
supervisor(s).9 Therefore, the ALJ’s reliance on Dr. Hite’s opinion was not flawed.
Additionally, the ALJ’s conclusion that Havens was not disabled is
supported by a reading of the administrative record as a whole. The ALJ found
that the doctrine of res judicata applied to a previous decision of the Social
9

“Unskilled work is consistent with simple, routine tasks.” E.g., Douglas v. Astrue, CIV.A. 091535, 2011 WL 482501, at *5 (E.D. Pa. Feb. 4, 2011). Unskilled work requires little to no
judgment, and the duties “can be learned on the job in a short period of time.” See, S.S.R. 83-10.
Thus, Havens; supervisor would not need to give a great deal of instruction to Havens.

26

Security Administration, a finding that Havens does not challenge on appeal. Tr.
14-15. This means that, as a matter of law, Havens was not disabled as of May 20,
2010, the date of the Commissioner’s previous decision. Tr. 15. The medical
records from the relevant period pertaining to Havens’ current application are
substantially similar to the records from Havens’ period of non-disability.
From 2009 until April 2010, Havens’ GAF scores fluctuated between fiftyone and fifty-seven. Tr. 376-94, 530. During the period of time pertaining to the
ALJ’s decision, Havens’ GAF scores generally rested in the high fifties, although
the GAF scores briefly dipped to forty-nine for a period of four months following
the death of Havens’ daughter. Tr. 531-49, 641-48, 713-44. At every appointment
prior to the relevant period, Havens denied anxiety or depression, and Dr. Berger
opined that Havens did not demonstrate symptoms of anxiety or depression. Tr.
376-94, 527. At every appointment during the relevant period, Havens denied
anxiety or depression, and Dr. Berger opined that Havens did not demonstrate
symptoms of anxiety or depression. Tr. 531-49, 641-48, 713-44.
At every appointment prior to the relevant period, Dr. Berger noted in his
objective findings that Havens’ speech was clear and fluent. Tr. 376-94, 530.
Additionally, at these appointments Dr. Berger observed that Havens had intact
language processing, coherent and logical thought processes, and intact associative
thinking. Id. Havens was alert and oriented, her recent and remote memory was
27

intact, she had a normal attention span and concentration, her judgment was intact
and realistic, and she had appropriate and intact insight. Id. Identical objective
findings exist in every one of Dr. Berger’s appointment records during the relevant
period. Tr. 531-49, 641-48, 713-44. Consequently, when viewed as a whole,
Havens’ medical records indicate that her condition did not deteriorate after May
20, 2010, a date in which Havens was not disabled. This militates against a finding
that Havens was disabled.
D.

Assessment of Havens’ Credibility

Finally, Havens challenges the ALJ’s determination that her testimony and
subjective complaints were not entirely credible. Tr. 21, 25-26. Havens argues
that the ALJ misinterpreted medical evidence and erroneously relied upon Havens’
activities of daily living in concluding that Havens’ complaints were not entirely
credible. (Doc. 14). “Allegations of pain and other subjective symptoms must be
supported by objective medical evidence.” Hartranft v. Apfel, 181 F.3d 358, 362
(3d Cir. 1999), citing 20 C.F.R. § 404.1529. Where an ALJ reaches a credibility
determination, that determination is entitled to deference by the district court
because the ALJ “has the opportunity at a hearing to assess a witness’s demeanor.”
Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). See also, Morales v. Apfel,
225 F.3d 310, 318 (3d Cir. 2000) (stating that a Court “cannot second-guess [an]
ALJ’s credibility judgments”).
28

The ALJ decided that Havens was not entirely credible for two primary
reasons. First, the ALJ noted that Havens’ activities of daily living were “not
consistent with her allegations of sever[e] and debilitating symptoms and
limitations.” Tr. 25. The ALJ believed that Havens’ ability to tend to all
household chores, cook meals, care for two children on a full-time basis, shop, and
attend church consistently, weighed against her statements that she was severely
incapacitated. Tr. 25-26.10
Second, the ALJ believed that Havens’ “mental status examinations, when
considered as part of the longitudinal treatment record, do not support her alleged
level of incapacity.” Tr. 26. In that vein, the ALJ noted that Havens’ mental status
examinations were essentially normal at every appointment with Dr. Berger. Id.
Dr. Berger consistently found that Havens’ speech was clear and fluent; Haven
consistently had intact language processing, coherent and logical thought
processes, and intact associative thinking. Tr. 531-49, 641-48, 713-44. She was
alert and oriented, her recent and remote memory was intact, she had a normal
attention span and concentration, her judgment intact and realistic, and she had
appropriate and intact insight. Id. This evidence does contradict some of Havens’
testimony, such as her alleged inability to focus on tasks at times. Tr. 50.
10

Contrary to Havens’ argument, the ALJ did not rely upon these activities of daily living to
conclude that Havens was capable of working; rather, the ALJ relied on those activities in
concluding that Havens’ statements regarding her symptoms and their limiting effects were not
entirely credible. Tr. 21, 25-26.

29

While none of the evidence relied upon by the ALJ is alone conclusive,
taken in the aggregate, the evidence was sufficient to support the ALJ’s
conclusion, particularly in light of the great deference that is owed to an ALJ’s
credibility determinations. While another factfinder may have decided differently,
the ALJ’s decision is supported by substantial evidence.
IV.

CONCLUSION
A review of the administrative record reveals that the decision of the

Commissioner is supported by substantial evidence. Pursuant to 42 U.S.C. §
405(g), the decision of the Commissioner is affirmed.
An order consistent with this memorandum follows.
BY THE COURT:
s/Yvette Kane
Yvette Kane
United States District Judge
Dated: September 17, 2014

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